Tata Motors

SidhantSidhant Moderator
edited June 2014 in Automobile
1. Sh. Sukhdev Singh son of late Shri Harnam Singh

resident of House No. 12, Brahmin Sabha Building

Card Road Shimla, HP.

……..Appellant.

Versus

1. M/s Satluj Motors NH-21, Lunapani, Tehsil Sadar,

District Mandi, HP., through its partner Shri Narinder

Singh Guleria and Mohan Singh Guleria sons of Shri Dharam

Singh Guleria.,

2. Tata Motors through its Manager Passenger Car Business

Unit SCO 170-171, 1st Floor Sector 17-C Chandigarh (UT).

…….Respondents.

O R D E R:
These appeals have arisen out of the order passed by District Forum Mandi, in Consumer Complaint No. 286/2007, on 31.7.2008, as such they were heard together and are being disposed of by this order.

2. Appeal No. 245/2008 has been filed by Shri Sukh Dev Singh, hereinafter to be referred as complainant, Appeal No.256/2008 has been filed by M/s Satluj Motors, hereinafter to be referred as OP No.1 and Appeal No. 259/2008 has been filed by the manufacturer i.e. Tata Motors Limited, hereinafter to be referred as OP No.2.

3. Alleging deficiency in service, as well as unfair trade practice having been indulged into by the OPs No.1 and 2, a complaint was filed by the complainant. In this context it may be appropriate to notice here, that OP No.2 being the manufacturer of Tata India V-2 Diesel Turbo Car sold by OP No.1 to the complainant for Rs. 4,00,587/- is not in dispute. Vehicle was delivered on 22.1.2007 at Mandi. At the time of sale Form No. 21 was issued by OP No.1, for getting the sold vehicle registered. In this form its year of manufacture is shown as 2007. Vehicle was sold with extended warranty upto 2010 or 1,50,000 kilometers.

4. In this background further case of the complainant was, that vehicle sold to him though projected to be of 2007 model, but in fact it was of old model besides being second hand. Its tyres got worn out after those had covered only 4000 kilometers. In addition to this, body shell was leaking and rain water was entering in the vehicle through wind screen side and air conditioning system when put to use failed to work, there was wrong alignment of doors, besides there being rattling in the engine.

5. After bringing all these defects to the notice of OP No.1, tyres were replaced as also the complete front suspension, dash board as well as pipes of the air conditioner. Despite these repairs, the problems persisted, and OP No.1 was not able to rectify those. Vehicle was shown to a mechanic at Shimla. His report, Annexure C-5 it reads as under:-

“It is certified that the vehicle bearing Chases No. 601521 LTZPG9213 Engine No. 4751 DT 15 LTZPG 9709, which bears Registration No. HP-63-5200 was inspected by me on 8.7.2007 at the instance of its registered owner S. Sukh Dev Singh, and on inspection it was found that the vehicle has been partly repainted from left side consisting of doors and dicky/boot case after removing the dents, on pouring heavy water on body shell it is found and observed that water is leaking inside body. Doors are also not properly adjusted and engine also found rattling, all these defects in my opinion are due to previous accident of vehicle.

Sd/-

Ateek Motor Works

Ghora Choki, Shimla”



6. In this background complainant prayed for a direction to the respondent to provide him 2007 model vehicle by replacing the old one as also to allow the compensation and cost of litigation.

7. Stand of OP No.1 was, that District Forum had no jurisdiction to entertain and decide the matter as no cause of action had accrued to the complainant in its jurisdiction. Vehicle was delivered to the complainant after his due satisfaction for which he had signed the sale letter. Sale of vehicle was admitted by OP No.1. Regarding year of manufacture its stand was that it was manufactured in December, 2006, and it was sold in January, 2007 to the appellant. It was further case of OP No.1, that on the date of sale of the vehicle by it to the complainant it was not possible to provide the vehicle of the same year, i.e. of the year 2007 within 10-15 days.

8. In this context we feel it necessary to notice the stand of both the OPs regarding the month and year of the manufacturing of vehicle. OP No. 1 is specific that it was “December 2006”, whereas in its written statement stand of OP No.2 was that it was “November, 2006”. Though OP No.1 has justified by holding out, that the complainant was informed that it is not possible to provide 2007 model vehicle in January, 2007 itself.

9. In the context of the model of vehicle, we are constrained to observe at this stage that both the OPs cannot wriggle out of what was held out by OP No.1 who is the authorized dealer and frontman of OP No.2 appointed for the sale/service etc. of the vehicles manufactured by it. OP No.1 has given the year of the manufacturing in Form No. 21 as “01-2007”, i.e. January, 2007. Form No.21 having been issued by OP No.1 at the time of sale was admitted on behalf of both the OPs. Thus it is a clear cut act of unfair trade practice having been indulged into on their part. What are/were the terms of dealings between both the OPs inter-se is no concern of the complainant. We may further clarify that it is not the case of the OP No.2 that it had dealt with the complainant directly or that the dealing between both the OPs were on principal to principal basis. And if this was factual position, even then it makes no difference to the case of the complainant.

10. In the aforesaid background, Mr. Chandel learned counsel for OP No.1 submitted that warranty including extended warranty was only qua the replacement of parts only, which at best could be ordered to be replaced. Though he did not concede that there were any such parts in the vehicle. Alternatively and without in any manner admitting the claim of the complainant, he urged that compensation awarded is on higher side and interest on it could not have been allowed. Further according to him cost for harassment should not have been allowed at all. Similarly direction regarding removal of defects etc. in the peculiar facts was unwarranted. Thus he prayed for allowing appeal of OP No.1.

11. Mr. Arora in the appeal filed by OP No.2 submitted, that his client has been wrongly held jointly and severally liable with OP No.1, because there was no direct dealing between the complainant on one side and the OP No.2-his client on the other. Though he did not admit, but alternatively he submitted that the dispute if any, was between OP No.1 one side, and the complainant on the other and nothing having been held against his client, appeal of OP No.2 deserves to be allowed and he prayed for accordingly.

12. While contesting the submissions urged on behalf of the OPs, learned counsel for the complainant pointed out, that harassment and mental tension had been caused to his client, because both the OPs had indulged into unfair trade practice and were also deficient in service. In this behalf he referred to the reply filed by both the OPs, wherein it is admitted by them that OP No.2 is the manufacturer of the vehicle that was manufactured in November, 2006 according to it, and in December, 2006 according to OP No.1. Similarly it is not in dispute that OP No.2 as manufacturer, that it has appointed OP No.1 as its dealer for the sale/service etc. of the vehicles of the type which is subject matter of these appeals who had sold the same to the complainant.

13. Therefore what emerges from the above facts is that OP No.1 is the face of OP No.2 appointed for the sale/service etc. of the vehicles manufactured by the latter. In these circumstances as manufacturer it cannot be exonerated of the liability to indemnify the complainant. None of the OPs could justify as to why in Annexure C-1, i.e. Form No. 21 issued by OP No.1 qua the vehicle in question showed the year of its manufacture as “01-2007”.

14. Faced with this situation learned counsel for the OPs submitted, that this was due to typographical error. This is a plea being noted simply to be rejected, in the face of Annexure C-3, the gate pass issued by OP No.1 when the vehicle was taken out of its showroom. In it year of manufacture is again shown as “2007”. In this behalf it may be appropriate to mention here, that firstly it has been shown to be 2006, but after correction it was shown as 2007. This nails the plea of typographical error by OP No.1, besides falsifying the same. OP No.1 according to us, knowing fully well sold a 2006 model vehicle by projecting it as 2007 model.

15. Defects were persisting as stated by the complainant in his complaint is also made out from the job cards issued by OP No.1 at the time of servicing etc. of the vehicle in question. These are Annexure C-7-(i) to C-7-(x). At least from these documents it is evident that from day one (see job card 7 (iii) is of 27.3.2007), defects were being highlighted by the complainant as detailed in the complaint. Next job card is 7(iv). Since tyres were replaced as such job card Annexure 7(v) is only relevant in the context to show that the vehicle was not in order or what was held out at the time of its sale and it had some inherent defects due to which tyres were worn out just after 4000 Kms. It is a different matter that those were replaced. However it supports the plea of the complainant that vehicle was not of the model and of the quality, as projected at the time of sale to him by OP No.1. In these circumstances, we find no substance in the submission of Mr. Chandel, that the warranty if any was only for replacement of defective parts, therefore at best those could have been ordered to be replaced. If this plea is taken to its logical end, then in such a situation we shall have to direct the OP No.1 that instead of carrying out the directions of the District Forum below, it should replace those parts which have been found to be defective from day one instead of removing those defects.

16. So far plea of learned counsel for the complainant, that compensation is on higher side and interest should not have been allowed, according to us this is a fit case where the vehicle should have been ordered to be replaced rather than directing the OPs to jointly and severally remove the defects. Reason being that the sale itself was nothing, but an act of unfair trade practice on the part of OPs, and OP No.1 as frontman/authorized dealer of the vehicle in question manufactured by OP No.2 had sold 2006 model vehicle holding it out to be 2007 model without disclosing this fact to the complainant. If after disclosure complainant had purchased the same, he was precluded from making any grievance at least on this ground.

17. A person does not purchase a new vehicle as is the situation in the present case for running to the workshop every second day with defects one after the other. Defects being there is clearly made out from the job cards. Learned counsel for the OPs when confronted with these defects as per job cards, submitted that those were not such which may justify the order of the District Forum below or requiring replacement either of vehicle or of any of its parts. In the facts and circumstances of this case this submission on behalf of the OPs has no substance. We are of the view that compensation assessed is on account of a 2006 model vehicle having been sold to the complainant by projecting it as 2007 model, which fact is clearly established from the discussion in the preceding paras of this order.

18. Complainant has been rightly awarded compensation on account of harassment and as well as interest, pleas to the contrary of Mr. Chandel is without substance. As such those are rejected.

19. None of the submissions urged by Mr. Arora in support of the appeal of OP No.2 can hold the ground. Reason being that as manufacturer of the vehicle in question, it is the duty of this OP to ensure that its agents, dealers, service providers etc. like OP No.1 do not indulge into any unfair trade practice and or are deficient in service. At the risk of repetition, here the stand of OP No.1, that the vehicle was manufactured in December, 2006 and of OP No.2 that it was a November, 2006 manufactured vehicle, shows how the manufacturer and its dealer are conducting themselves in their dealings with the outside world. OP No.2 was impleaded as a party being manufacturer, as such submission of Mr. Arora that nothing has been held against his client, therefore impugned order against it needs to be set aside, is being noted to be rejected.

20. Now coming to the appeal of the complainant. We would have certainly dealt with the submission of Mr. Dinesh Sharma for replacement of vehicle as well as any other or further relief being granted to his client as per law. However the fact remains that at the time of hearing it was not disputed by Mr. Sharma on instructions received from his client who was present at the time of hearing, that the vehicle was in use at the time of filing of the complaint and it is even now being used by him. Nothing prevented the complainant to have approached the District Forum below at the time of filing of the complaint seeking appropriate directions against the OPs qua the vehicle in question. However for reasons best known to him no such attempt was made. Besides this, complainant is using the vehicle from the time of its purchase till date. As such submission of Mr. Sharma for the replacement of vehicle is hereby rejected. Besides this, in the peculiar circumstances of this case, we find that no other or further relief can be granted to him from what has been allowed by the District Forum below. Ordered accordingly.

21. Before concluding we must clarify that as high contracting parties, OPs are expected as well as required to act in a fair, reasonable and just manner while dealing with its customers, like the complainant before us. Both the learned counsel appearing for the OPs could not justify the action of their respective clients when OP No.1 held out at the time of sale of the vehicle in question to be showing its year of manufacture as “01-2007”, when it was alive that it was manufactured in December, 2006 and is even controverterted on this aspect from the stand of OP No.2 who had clearly mentioned in its reply to the complaint that the vehicle in question was manufactured in the month of November, 2006. This clearly leads us to conclude that the OP No.1 was taking its customer like complainant for a ride by misleading as well as by misguiding them by indulging into unfair trade practice and then justifying the same due to typographical error etc.

22. No other point was urged.

In view of the aforesaid discussion appeal filed by the complainant is dismissed. At the same time appeals filed by OPs No.1 and 2 are also dismissed. They are burdened with punitive costs in the facts and circumstances of this case and for the payment whereof in addition to the relief granted by the District Forum below they are further held jointly and severally liable such costs which is quantified at Rs. 20,000/-. Defects to be removed to the satisfaction of the complaint by them in terms of the order of District Forum below by or before 15.7.2009 and for this purpose complaint shall produce the vehicle before OP No.1.

All interim orders passed from time to time in Appeal Nos. 256/2008 and 259/2008 shall stand vacated forthwith and office is directed to place authenticated copy of this order on the files of Appeal Nos. 256/2008 and 259/2008.

Copy of this order has been supplied to the learned counsel for the OPs free of cost as per rules by the Court Secretary today and office is directed to send it in the like manner to Mr. Dinesh Sharma, Advocate, District Courts, Mandi.



Shimla.

2nd June, 2009. (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.
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Comments

  • adminadmin Administrator
    edited September 2009
    C.C.No: 234/2008
    BETWEEN:
    Kolla Nagababu,
    S/o Ramaiah, aged 41 years,
    Bodawada Mandagunta Post,
    Parchur Mandal, Prakasam Dist. ... Complainant.
    Vs.
    1. The Managing Director,
    TATA Motors, 2nd Floor,
    Surya Towers, ‘C’ Block,
    104, S.P. Road, Secunderabad.

    2. The Manager,
    Jasper Industries Private Limited,
    TATA Motors, Benz Circle, Vijayawada.

    3. The Manager,
    TATA Motors,
    Kurnool Road, Ongole. …Opposite parties.

    COUNSEL FOR COMPLAINANT: SRI B. LAKSHMI NARAYANA RAO,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY NO.1&2: SRI A. RADHA KRISHNA MURTHY,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY NO.3: NONE.

    This complaint is coming on 25.02.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
    ORDER:
    1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite parties to replace the vehicle bearing No.AP 27/R 2255 Tata Indigo CS.LS with new vehicle and to pay Rs.50,000/- towards insurance, registration expenses and Rs.1,500/- per each day of stoppage and Rs.1,00,000/- towards mental agony and costs of the litigation.

    2. The averments in the complaint are as follows: The complainant is a Class-III Contractor, having his business office at Main Road, Addanki in Prakasam District. The first opposite party is the manufacturer of TATA Motors i.e., Tata Indigo CS.LS. and the 2nd opposite party is the authorized dealer. The complainant with a view to purchase Tata Indigo CS.LS car placed an order with the 2nd opposite party on 30th May, 2008 by paying an advance of Rs.5,000/- @ Rs.4,35,240/-. The opposite parties informed that car was ready for delivery and demanded excess amount of Rs.5,000/- as price variation. Accordingly on 18.06.2008 the complainant paid cash of Rs.69,799/- and the remaining balance of Rs.3,70,000/- was financed by Mahindra & Mahindra Finance, Ongole. On 19.06.2008 the 2nd opposite party delivered the vehicle at the business place of the complainant. Since from the date of the first service itself, the complainant is complaining unusual noise from the bottom of the vehicle. For the first two or three times, 2nd opposite party did not note down the complaint and the simply stated they will rectify it as the noise is coming from the seat.

    Though the seats are adjusted, the noise is not rectified. Subsequently the noise become unbearable and the vehicle was handed over to the 2nd opposite party at their Guntur show room on 23.08.2008. At Guntur they noticed that the noise is coming from the bottom side as the joint between the rear floor and front floor got disturbed and the noise is coming from this joint. Since the 2nd opposite party did not choose to answer the grievances of the complainant and kept the vehicle with them. For each day, the complainant is constrained to take a rented vehicle at Rs.1,500/- per day. At the first instance, the 2nd opposite party addressed a letter to the 1st opposite party requesting to replace the vehicle. Thereafter inspite of many reminders, the opposite parties fail to solve the problem and so the complainant is constrained to issue legal notice to the opposite parties on 11.09.2008. The 2nd opposite party gave a reply with false allegations on 22.09.2008 stating that as per the warranty, the parts which are beyond repairs can be only be replaced and if it can be repaired, it shall have to be repaired. Such warranty condition is not there. As per the warranty conditions, their obligation is to repair or replace free of charge such parts of the car which in their opinion are defective and the parts so replaced by the company under warranty shall be their property.

    The problem in this case is a manufacturing defect and cannot be repaired except by replacing with a new car. At the initial stage, the 2nd opposite party had promised to replace it with a new car, but started bad litigation as if the complainant is not co-operating with the opposite parties. The complainant had incurred around Rs.50,000/- insurance, registration, taxation etc. The complainant is also constrained to pay the loan installments without enjoying the car. There is negligence and deficiency in service on the part of the opposite parties. Hence, the complaint.

    3. The petition against the 3rd party was dismissed on 01.12.2008 as not pressed by the complainant.

    4. The opposite parties 1 & 2 filed their counter contending as fallows: The present complaint before the Consumer Forum at Ongole is not maintainable as the transaction of purchasing of vehicle took place at Vijayawada and delivered at Guntur. As per condition No.14 of the purchase order “Court at Vijayawada only will have jurisdiction on any dispute that may arise”. As such this Forum has no jurisdiction to entertain the present complaint as no part of cause of action arose with in the jurisdiction of this Forum and the complaint is liable to be dismissed on this ground. Alleged defect in the vehicle is absolutely repairable and the opposite party is always ready to repair the said defect. The defect is not a manufacturing one, and therefore the question of replacing with new vehicle does not arise. The complainant with evil intention and ulterior motive left the vehicle at the opposite parties auto garage. Inspite of letters addressed to the complainant on 10.09.2008 requesting him to attend and rectify the defect in the vehicle as per company norms, he has not responded. The complainant fail to attend the 1st service of the vehicle which is mandatory as per norms, at Guntur or Vijayawada work shop. The complainant came to Guntur work shop for the 1st instance with a complaint of A.C. water leaking at 2548 K.Ms.

    The complainant brought the vehicle to the work shop at Guntur at 5112 K.Ms. with complaint on tyres and the same was rectified. The Assistant General Manager of service addressed to a letter stating that the alleged defects in the vehicle is only minor and minute and it will be repaired as per the company policy. But the complainant suppressing the same and issued a lawyer notice through his counsel. The opposite parties sent suitable reply to the said notice stating that the defect is repairable and will be attended to the highest standards. The allegation that the problem in the vehicle is a manufacturing defect and it cannot be repaired, except replacing with a new car is false. The 2nd opposite party never promised to replace the vehicle with a new vehicle. The complainant is not entitled for replacement with new vehicle since the alleged defect is from minor and it is not a manufacturing defect. For the foregoing reasons the opposite parties prays the forum to dismiss the complaint with costs.

    5. On behalf of the complainant Exs.A1 to Ex.A8 were marked. The Ex.A1 is the Copy of Terms and Conditions. Ex.A2 is the Tax Receipt. Ex.A3 is the Reply notice of O.P.2. Ex.A4 is the Office copy of lawyer notice. Ex.A5 is the Postal Acknowledgements of O.Ps.1&2. Ex.A6 is the Photo showing the defects in body of car issued by OP2. Ex.A7 is the Letter addressed by O.P.2 to O.P.1. Ex.A8 is the Sales Invoice dated 18.06.2008 issued by O.P.2.

    6. On behalf of the opposite parties Exs.B1 to Ex.B10 were marked. Ex.B1 is the Purchase order form. Ex.B2 is the Sales Invoice. Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant. Ex.B4 is the Security Book. Ex.B5 is the Job Card dated 01.07.2008. Ex.B6 is the Job Card dated 25.07.2008. Ex.B7 is the Job Card dated 23.08.2008. Ex.B8 is the Job Card dated 28.08.2008. Ex.B9 is the Letter dated 10.09.2008 to the Kolla Naga Babu, Biodavad Manda Gunta, Parchuru Mandal, Prakasam District. Ex.B10 is the Debit Note dated 18.06.2008.

    7. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

    8. The issue relating to jurisdiction raised by the opposite parties was already answered in the order dated 19.01.2009.

    9. It is an admitted case that the complainant purchased Tata Indigo CS.LS model vehicle from the 2nd opposite party who is the authorized dealer of Tata Motors after availing finance from Mahindra & Mahindra Finance, Ongole for Rs.4,35,240/-. The vehicle was delivered to the complainant on 19.06.2008. Ex.B1 is the purchase order form and Ex.B2 is the sales invoice and Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant.

    10. The grievance of the complainant is that since day one there was unusual noise from the bottom of the vehicle and subsequently the said noise became unbearable. According to the complainant it is due to the manufacturing defects in the vehicle and therefore he handed over the vehicle to the work shop at Guntur on 23.08.2008 and ever since the vehicle is in the work shop. The complainant is not willing to take back the defective vehicle and his is insisting to replace the vehicle with new vehicle.

    11. The learned counsel for the opposite parties argued that manufacturing defect is not defined anywhere and only an auto mobile expert can say whether such defect is manufacturing defect. If any expert says that it is a manufacturing defect manufacturer has no other go except the replace the vehicle. He further argued that the burden is upon the complainant to prove that there is manufacturing defect in the vehicle, but the complainant fail to prove the same. He further argued that if the vehicle is not repairable then only the question of replacement of the vehicle arise. In the present case the defect is minor and the same is repairable and the opposite parties are ready to repair the vehicle. Since, the defect pointed out by the complainant is not a manufacturing defect and when it is repairable opposite parties are not liable to replace the vehicle with new vehicle and the complaint is liable to be dismissed.

    12. It is not in dispute that the vehicle was delivered to the complainant on 19.06.2008. As per the Job Card Ex.B5 dated 01.07.2008 within two weeks the vehicle was taken to the work shop complaining water leakage from A.C. As per Ex.B6 Job Card dated 25.07.2008 the vehicle was taken to the work shop for plastic component Welding/Repairs/Painting – Tube joint air leak. As per Ex.B7 Job Card the vehicle was again taken to the work shop on 23.08.2008 complaining body sound it means within two months after the vehicle covered 7906 K.Ms. the complainant notice sound from the body of the vehicle. As per Ex.B8 Job Card dated 28.08.2008 the vehicle was again taken to the work shop with same complaint i.e., Under Carriage Noise + Bottom Noise and the vehicle was left at the work shop and not taken back by the complainant.

    13. 2nd opposite party contended that there was no manufacturing defect at all. According to the 2nd opposite party the noise and the sound is due to non welding of bottom plates at the place of joint and it can be welded. The defect is minor and it can be rectified by welding the joints and they are ready to do it. But the complainant is not cooperating and has not given his concerned to attend to the repair work.

    14. The learned counsel for the complainant argued that it is not the case of the opposite parties that the vehicle was used roughly or negligently by the complainant. It is a clear case of manufacturing defects in the vehicle. He further argued that total body of the vehicle is defective and it is not that a part of the vehicle is defective. So, that it cannot be replaced with a new part. Since, there is manufacturing defect in the vehicle 1st opposite party being the manufacturer and the 2nd opposite party is being the dealer are liable to replace the vehicle with new one.

    15. The dealer is saying that the defect can be rectified by welding the joint. The grievance of the complainant is that if a new vehicle is subjected to welding and repairs it may loose resale value and the prospective buyers may suspect about the quality of the vehicle.

    16. The complainant is relying on the letter Ex.A7 written by the dealer to the Senior Mechanic in Tata Motors. The learned counsel for the opposite parties argued that as a dealer the 2nd opposite party informed the manufacturer about the un happiness expressed by the customer and it is only internal correspondence between the dealer and the manufacturer and it is not binding on the manufacturer. What ever it may be the dealer admitted that they wrote the letter to Mr. Sunil Reddy, Senior Mechanic in Tata Motors. In their letter the dealer informed Mr. Sunil Reddy, that un usual noise is coming from the bottom side of the vehicle and on investigation they found that the joint between the rear floor and front got disturbed and noise is coming from this joint and sought for his advise. Ex.A6 is the photo showing from where noise is coming. Ex.A7 is the letter. We do not know what advise the Senior Mechanic has given to the dealer to rectify the defect. Certainly he might have given some reply. it is not before the forum and it is suppressed if it is produced it would be helpful to know whether the defect is repairable or not.

    17. No one can deny that the very purpose of purchasing a new car is to have a safe and comfortable journey. The main grievance of the complainant is that there is unusual noise/sound is coming from the floor of the car. No person while traveling in a car would like to hear unusual sound. Unless there is a defect in the new car no person would come forward to surrender the vehicle within a short period of two months. The complainant having fed up with the unbearable noise in the car surrendered the vehicle. I agree with the dealer that manufacturing defects are such would cannot be repaired and removed easily and in the present case the defect can be rectified by welding the joint. But we should not forget that if a new car is subjected to welding and if any patch work is done it may loose resale value and the complainant may not wholly satisfy with it. For these advanced type of vehicles there won’t be any chasis on which floor could be resting.

    The body is a moulded one. So, unless bottom floor of the vehicle is strong enough to with stand the weight of the body owner cannot feel safe to travel in the vehicle. Even if joint is welded as suggested by the dealer there is no guarantee that it may not come out again and with stand weight as there is defect in the bottom body of the vehicle. I agree with the dealer that there are no defects in the engine of the vehicle. The defect was in the bottom body of the vehicle. So, defective body can be replaced and not the vehicle.

    18. Considering the evidence on record and on hearing both sides I am of the opinion that instead of ordering for the replacement of the vehicle O.Ps. 1 & 2 can be directed to replace the body of the vehicle with new one.

    19. The complainant further contended that since the dealer did not choose to answer his grievance and kept the vehicle with it for each day he is constrained to take a rented vehicle @ Rs.1,500/- per day and claiming the same from the dealer. But the complainant is fail to produced any evidence to show that he was used a rental car. Therefore, I am of the opinion that he is not entitled to claim any amount under this head.

    20. In the result, petition is allowed and the opposite parties 1 and 2 are directed to replace the body of the vehicle with new one and hand over defect less vehicle to the complainant within One month from the date of order and also to pay Rs.20,000/- as compensation towards mental agony and Rs.2,000/- towards costs of the litigation.
  • adminadmin Administrator
    edited September 2009
    C.C. No. 95 /2008


    Between


    Smt. P. Sarojamma W/o P.Subramanyam,
    Aged about 73 years, Land-lady, residing at
    Dr.No. 10-299, D.I.Road, Chittoor Town & Dist.,
    … Complainant.


    And

    1.[FONT=&quot] [/FONT]The TATA Motors Limited, rep., by its
    Manager, Branch Office situate at
    Dr.No. 20-543/2, Sri Balaji Complex,
    Opp: Raghava Theater, Chittoor Town.

    2.[FONT=&quot] [/FONT]The TATA Motors Limited, rep., by its
    Authorized person, Office situate at
    Badri Nagar, Opp: Honda Show Room,
    Renigunta Road, Tirupathi Town,
    Chittoor District.

    3.[FONT=&quot] [/FONT]The TATA Financial Services Limited,
    C/o TATA Motors Limited, rep., by its
    Authorized person, office situated at
    1st Floor, Akhil Plaza, Opp.Current Office,
    Postal Colony, Nellore Town & District.

    4.[FONT=&quot] [/FONT]The TATA Motors Limited, TATA Motors Finance
    rep.,by its Authorized person, Regd., Office at
    Bezzola Complex, 1st Floor, V.N.Purev Marg,
    Chembur, Mumbai – 400 071.
    … Opposite Parties.

    This complaint coming on before us for final hearing on 12.02.2008 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri D. Reddeppa Reddy, counsel for the complainant, and Sri P.Purushottama Rao counsel for 1st opposite party and Sri G.S.Moorthy, counsel for the opposite parties 2 to 4 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 to direct the opposite parties 1 to 4 to receive the actual amount due to them towards loan for purchase of the car and Rs. 50,000/- towards compensation for deficiency in service.

    The complainant submits that she purchased a TATA Indica car bearing Registration No. AP 03 AA-5675 under hire purchase agreement for Rs. 3,90,787/- and paid an amount of Rs. 8,800/- cash and Rs. 1,90,787/- by way of Demand Draft to the 4th opposite party and took delivery of the said vehicle.

    The complainant submits that she got registered the said car in her name. She agreed to pay the balance amount of Rs. 2,30,000/- in 29 installments at Rs. 7,900/- per month, commencing from 11.08.2006 to 11.08.2008. The complainant submits that she gave post dated cheques to the opposite parties she paid a total sum of Rs. 1,76,400/- and due an amount of Rs. 53,600/- to the opposite parties. The total cost of the car is Rs. 3,90,787/- which includes loan amount of Rs. 2,30,000/- with interest. She is ready and willing to pay the balance amount of Rs. 53,600/- to the opposite parties and obtain No Objection Certificate from them. The opposite parties are demanding more than Rs. 1,00,000/- to issue No Objection Certificate and causing mental stress to her. Apart from that the opposite parties 1 & 2 are threatening the complainant stating that they will seize the vehicle and initiate criminal case against them. She gave legal notice to the opposite parties on 07.08.2008. After receiving legal notice the opposite parties are threatening the complainant by Telephone that they are going to seize the car at the earliest date. Due to the acts of the opposite parties the complainant suffered both mentally and physically. Therefore the complainant filed this complaint to direct the opposite parties to receive actual amount payable to them and the complaint may be allowed.

    The 1st opposite party filed Written Version alleging that this opposite party is only a service provider of the 4th opposite party. Its duties are very limited as per the agreement entered with the 4th opposite party. The 1st opposite party was appointed by the 3rd opposite party as per the terms and conditions of the agreement dt. 15.03.2006. As per condition No. 7 of the agreement there is no relationship of master and servant in between 4th opposite party and 1st opposite party. The functions of service provider are to issue proposal forms and after it is filled up by the hirer with requisite documents as mentioned in the proposal form it would be forwarded to the 3rd opposite party, who will issue loan agreement to the hirer, who intends to get loan from 4th opposite party through 1st opposite party. The 1st opposite party will collect the filled up agreement along with post dated cheques as mentioned in the agreement from the hirer and forward the same to the 3rd opposite party. The 3rd opposite party will issue releasing order of the vehicle to the nearer dealer of the 4th opposite party. Then the hirer can approach the dealer as mentioned in the releasing order and get the vehicle. Thus the duty of the 1st opposite party will be ceased. There is no question of threatening the complainant. The 1st opposite party is not necessary party to the present complaint. The complaint may be dismissed.

    The Opposite Parties 2 to 4 filed Written Version alleging that the complainant does not qualify the ingredients of a valid complaint as envisaged under Sec. 2(c) of C.P.Act. The complaint transaction is a commercial in nature and it does not fall within the scope of the C.P. Act and the same may be rejected.

    The opposite parties 2 to 4 submit that the complainant have availed a loan of Rs. 2,00,000/- for the purpose of purchasing TATA Indica car under hire purchase agreement dt. 11.08.2006. The loan is repayable in 25 equal installments at Rs. 7,900/- per month. The complainant has not complied with the terms as to the repayment of the loan obtained by her. She is habitual defaulter. As on 02.12.2008 the complainant is liable to pay Rs. 92,865.57/- towards the foreclosure of loan account in question. All though a sum of Rs. 2,30,000/- including finance charges of Rs. 30,000/- is agreed to be repaid, in case of default of regular monthly installments on the part of the complainant, she is liable to pay over due interest as well as other charges. When the complainant is due Rs. 92,865.57/- the opposite parties can not accept for a sum of Rs. 53,600/- from the complainant towards foreclosure of the said loan transaction. There is no question of issuing No Objection Certificate to the complainant, unless she pays full and final settlement of the loan account in question. It is denied that they behaved high handedly with the complainant and threatened her with dire consequences. The complainant is not entitled to seek any relief or compensation from the opposite parties. The complaint may be dismissed.

    On the basis of averments, the following points arise for consideration:
    1)[FONT=&quot] [/FONT]Whether this complaint is not maintainable in this District Forum ?

    2)[FONT=&quot] [/FONT]Whether the opposite parties 1 to 4 are demanding an excess amount of Rs. 92,865.57/- and excess interest and other charges illegally ?

    3)[FONT=&quot] [/FONT]Whether the complainant is due only a sum of Rs. 53,600/- to the opposite parties?

    4)[FONT=&quot] [/FONT]Whether the opposite parties committed deficiency of service?

    5)[FONT=&quot] [/FONT]To what relief?



    The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A4. The opposite party filed Chief Affidavit of RW-1 & 2 and marked Ex.B1 to Ex.B3.

    Point No. 1 :-


    The learned counsel for the opposite party contends that the complainant is not a consumer as defined in Sec. 2(1)(d) of C.P.Act and this complaint is not maintainable and the same may be dismissed. He further contends that the opposite parties 2 to 4 have no Branch at Chittoor and it has no jurisdiction.

    The learned counsel for the 1st opposite party contends that it is only a service provider of 4th opposite party. There is no relationship of master and servant between 1st opposite party and 4th opposite party. The function of the 1st opposite party is to issue proposal forms to the hirer and after it was filled up, the same will be forwarded to the 3rd opposite party, who will issue loan agreement to the hirer and issue releasing order of the vehicle to the nearer dealer of the 4th opposite party. Then the hirer can approach the dealer and get the vehicle. Therefore the 1st opposite party is nothing to do with the business of the opposite parties 2 to 4 and he is not liable for any compensation to the complainant.

    The Written Version filed by the 1st opposite party clearly discloses that the 1st opposite party has opened an office in Chittoor and getting business for Opposite parties 2 to 4. It is 1st opposite party that is processing everything to the hirer. The 1st opposite party is supplying proposal forms. It is obtaining all necessary documents and also post dated cheques from the hirer and forwarding them to 3rd opposite party. The major work for obtaining loan and releasing the vehicle to the complainant is processed by 1st opposite party only. Therefore the 1st opposite party is playing an important role for selling cars on behalf of opposite parties 2 to 4 and it is doing business in Chittoor. Further the 1st opposite party itself declared that it is service provider of opposite parties 2 to 4. Therefore this Forum has jurisdiction to entertain the complaint.

    The learned counsel for the opposite parties contends that the opposite parties 1 to 4 do not render any services within the meaning of Sec. 2(1)(g) and Sec. 2(1)(d) of C.P.Act, 1986 under hire purchase agreement and the complainant is not a consumer and this Forum has no jurisdiction.

    In this regard he relied on the decision reported in S.C – National Commission Consumer Law Cases (2005-2008 – at Page No. 744 - in Between Cholamandalam DBS Finance Ltd., Vs Kishore Jain - wherein their lordships held as follows :-
    ……The first plea taken by the petitioner is that in view of the provision for ‘arbitration in the hire – purchase agreement’, this Consumer For a has no jurisdiction. It is made clear that in view of the settled position of law, that Section 3 of the CPA, 1986 clearly stipulates that this is an ‘additional remedy’ hence this is consistently held by this Commission that it is for the party to decide as to which option to exercise ? The reliance of the learned Counsel of the petitioner on the order of this Commission in the case of Arihant Converters Vs United India Insurance Co.Ltd., II (1991) CPJ 246, is misplaced for the simple reason that in this case both the parties agreed for arbitration, which is not the case before us. Reliance placed on the judgment of the Hon’ble Supreme Courtin the case of “MD, Orix Auto Finance (India) Ltd., Vs. Jagmander Singh & Anr.,II(2006) SLT 166, Appeal (Civil) No. 1070 of 2006” again does not help the petitioner, as the Hon’ble Supreme Court has not ousted the jurisdiction of the Consumer For a for the simple reason as that was not the issue before them”.

    And also he relied on the decision reported in S.C – National Commission Consumer Law Cases (2005-2008 – at Page No. 137 in Between Ram Deshlahara Vs Magma Leasing Ltd., - wherein their lordships held as follows
    ……More over, under a hire –purchase transaction the financier does not render any service within the meaning of Consumer Protection Act, 1986 (for short the ‘Act’) and the petitioner is, thus, not a consumer. We do not find any illegality of jurisdictional error in the orders passed by For a below warranting interference in revisional jurisdiction in Section 21(b) of the Act.

    In view of ruling laid down by the National Commission, New Delhi in Cholamandalam DBS Finance Ltd., Vs Kishore Jain this Forum has jurisdiction to entertain the complaint. In the said case their lordships held that the Hon’ble Supreme Court has not ousted the jurisdiction of this Consumer Fora.

    According to me the rule enunciated in Cholamandalam DBS Finance Ltd., Vs Kishore Jain by National Commission, New Delhi is more applicable to the present case and I rely in 2007 –CTJ -557 (Supreme Court) (CP) in Kishore Lal Vs. Chairman, Employees State Insurance Corporation - where in their lordships held as follows :-
    It has been held in numerous cases of this Court that the jurisdiction of a consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s Spring Meadows Hospital and Another Vs. Harjot Ahluwalia and Another, 1998 CTJ 81 (SC) (CP) = AIR 1998 SC 1801, it was held that the Consumer Protection Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka Vs Vishwabarathi House Building Co-op.Society and Others, 2003 CTJ 85 (SC) (CP) = AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer for a held that the provisions of the said Act are required to be interpreted as broadly as possible and the for a under the Consumer Protection Act have jurisdiction to entertain a complaint despite the fact that other for all courts would also have jurisdiction to adjudicate upon the lis. Therese judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society V. M.Lalitha (deceased) through L.Rs and Others 2004 CTJ I(SC) (CP) =(2004) I SCC 3005. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which fralls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated”.

    There is no special Act having express provision under hire purchase agreement prohibiting the jurisdiction of the consumer Forum. Further Financial Institutions are also providing services to the hirers for providing loans to them. The said fact was spoken by 1st opposite party in its Written Version in clear words. The 1st opposite party stated that it supplies proposal form to the hirers. It also collects required documents along with filled up form. It also collects finance charges and post dated cheques, opposite parties 2 to 4 charges interest, penal interest and other services charges. All these acts are called rendering services with in the meaning of Sec. 2(1)(o) of C.P.Act.

    In view of the ruling laid down by the lordships in National Commission, New Delhi as well as Hon’ble Supreme Court, I am of the view that this Forum has jurisdiction to entertain this complaint. Further it is the 1st opposite party himself in its Written Version stated that it is a service provider to the hirer on behalf of Opposite parties 2 to 4. Therefore the complainant is called Consumer U/Sec. 2(1)(o) and Sec. 3 of C.P.Act.

    In the case reported in S.C. National Commission Law Cases (2005-2008 at Page No. 744 it was held that arbitration clause in the hire purchase agreement is an additional remedy and not in derogation with any other law. Therefore I am of the view that the complainant is a consumer and this Forum can entertain this complaint.
    This point is answered accordingly.

    Points No. 2 to 4 :-
    The learned counsel for the complainant contends that the complainant purchased TATA Indica Car for a sum of Rs. 3,90,787/- under hire purchase agreement, she paid Rs. 1,90,787/- and obtained loan of Rs. 2,00,000/- and financial charges of Rs. 30,000/-. The complainant agreed to pay the loan amount of Rs. 2,30,000/- including interest in 29 equal monthly installments at Rs. 7,900/- per month. The 1st installment commences on 11.08.2006 and ends by 11.08.2008. He further contends that the complainant paid Rs. 1,76,400/- and due only Rs. 53,600/-, but the opposite parties are demanding more than Rs. 1,00,000/- for issuing No Objection Certificate and threatening to seize the car from her. The collection of excess interest and threatening to seize car for non-payment of excess interest contrary to the terms and conditions is unfair trade practices. Therefore the complainant filed this complaint before this Forum that she is willing to pay the actual loan amount of Rs. 53,600/- and direct the opposite parties to receive the same and issue No Objection Certificate.

    PW-1 is the complainant himself, he stated that he obtained loan of Rs. 2,30,000/- and agreed to pay the same in 29 equal equal monthly installments of Rs. 7,900/- per month, she gave post dated cheques to the opposite parties and paid a total sum of Rs. 1,76,400/- on 15 occasions and now she is due a sum of Rs. 53,600/- till this date.

    PW-1 stated that the opposite parties are demanding to pay more than Rs. 1,00,000/-, which they are not entitled and they are harassing her.

    RW-2 is a Manager, working with opposite parties 2 to 4. He stated that the complainant availed a loan under hire purchase agreement from the opposite parties for a sum of Rs. 2,00,000/- and purchased TATA Indica car. He stated that the complainant has not complied as to repayment of the loan amount and she is a defaulter. RW-2 stated that as per the Statement of accounts as on 02.12.2008 the complainant is liable to pay Rs. 92,865-57/- for foreclosure of the loan amount.

    RW-1 stated that unless the complainant pays all the installments due to the opposite parties she is not entitled for No Objection Certificate. Therefore there is no deficiency on their part and the complainant is not entitled for any relief in this case. RW-2 furnished the details of payments made by the complainant and the over due charges and cheque bouncing charges collected by the opposite parties. The opposite parties 1 to 4 admitted that the complainant paid an amount of Rs. 1,75,700/- till the date of filing of affidavit on 25.02.2009. The complainant also admitted in her Written Arguments that she paid Rs. 1,75,700/- and she is due only Rs. 54,500/-. The dispute between the complainant and opposite parties is only with regard to over due charges 29,492.21/- and cheque bouncing charges Rs. 8,400/- and total sum of Rs. 37,892.21/-. According to the complainant demanding these amounts is unfair trade practice. I agree with the learned counsel for the complainant. Demanding excess penal interest not provided by agreement is unfair trade practice. In the case the agreement Ex.A2 does not speak of collecting penal interest. The complainant admits that she did not pay the 29 installments regularly as agreed by her and she paid them with a little days less than one month and the opposite parties calculated the delays in their statement accompanied to the affidavit of RW-2 and arrived at Rs. 29,492.21/-. The complainant is not willing to pay over due charges of Rs. 29,492.21/-. The hire purchase agreement Ex.B2 does not disclose the rate of interest on delayed payments. But the opposite parties collected interest at 36% p.a on delayed payments. Most of the delayed payments are less than a month. The agreed interest at the time of sanctioning loan is 6% p.a only. In such a case the opposite parties collecting penal interest at 36% p.a is too excess and it is unfair trade practice. When hypothecation agreement Ex.B2 does not speak of charging penal interest on delayed payments. I feel it proper awarding reasonable penal interest at 12% on delayed payments, because the opposite parties charged interest at 6% p.a on principal loan amount at the time of sanctioning loan. Considering these aspects and allowing 12% p.a penal interest on delayed payments, this Forum grants an amount of Rs. 9,830/- towards penal interest as against Rs, 29,492/-.

    The opposite parties collected Rs. 8,400/- towards cheque bouncing charges. They have not filed any evidence that all the cheques are bounced. It is admitted by the opposite parties that the complainant is paying Demand Drafts when ever the cheques are bounced. The opposite parties have not filed any evidence that they incurred Rs. 8,400/- towards cheque bouncing charges. Therefore the same are disallowed.

    The opposite parties are entitled to Rs. 2,30,000/- and penal interest at Rs.9,830/-. The complainant is due an amount of Rs. 2,39,830/- (Rupees two lakhs, thirty nine thousand, eight hundred and thirty only) as on the date of filing of this complaint, she paid already Rs. 1,75,700/- and she is due an amount of Rs. 64,130/-. The complainant stated that she paid Rs. 15,800/- under receipt Ex.A5, after filing this complaint. Then the complainant is due only Rs. 48,330/- and she is directed to pay the same to the opposite parties within 6 weeks from the date of this order, failing which it carries interest at 9% p.a.
    Points 2 to 4 are answered accordingly.

    Point No. 5:-
    In the result the complainant is due only Rs. 48,330/- (Rupees forty eight thousand, three hundred and thirty only) and she is directed to pay the same to the opposite parties within 6 weeks from the date of this order, failing which it carries interest at 9% p.a. After the amount is received within one week thereafter the opposite parties are directed to issue No objection Certificate to the complainant. Thus the complaint is allowed in the circumstances no costs.
  • adminadmin Administrator
    edited September 2009
    Smt. Keshav Mani W/O of Shri Hari Dass, Resident of Village Naini, P.O. Jeori, Tehsil Rampur, District Shimla.

    … Complainant
    Versus



    1. Tata Mtoors Ltd., Jamshedpur, Jharkhand through its General Manager.

    2. Dinesh Automobiles, Khaneri, Rampur through its Proprietor.

    3. Goel Automobiles, Authorised dealer for Tata Commercial Vehicle, Kholi, P.O. Dugha, Hamirpur, H.P.

    4. Tata Motors Finance, a division of Tata Motors Limited
    Bombay House 24, Homimodi Street, Mumbai-400001
    Through its Manager.

    …Opposite Parties

    Coram

    Shri Pritam Singh (District Judge) President.
    Ms. Karuna Machhan, Member (Female)
    Mr. Charanjit Singh, Member (Male)
    ………………………………………………………………………..

    For the complainant: Mr. Sanjeev Bhushan, Advocate.

    For the Opposite Parties: Mr. Shashi Bhushan, Advocate
    for OP No.1.
    Mr. Pradeeh Chauhan, Advocate
    for OP No.2.
    Mr. Dheeraj Kanwar, Advocate
    vice Ms. Shilpa Sood, Advocate
    for OPs No.3 & 4.


    O R D E R:
    Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The facts in brief as set out in the complaint are that she is registered owner of truck bearing registration No.HP-63-1334 which was purchased by her from the OP No.3 through OP No.2 in August, 2005 for a total consideration of Rs.6,96,092.99. It is her case that after 2-3 months of the purchase of the aforesaid truck, it started giving problem and as such it could not be plied by her. That she brought this fact to the notice of the OP No.2 and asked him to rectify the defect/problem developed in the truck. But, the OPs on one pretext or other dilly-dallied its rectification and she was made to suffer financial huge loss. That at the advice of the OP No.2, the truck in question was taken to Vasco Motors, Chandigarh, whereas she was told that it was a manufacturing defect in the vehicle as sub-standard material was used by manufacturer. That this manufacturing defect in truck developed during the warranty period and truck is lying parked and cannot be plied. It is further alleged that the OPs by selling a defective truck have indulged in an unfair trade practice. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.

    2. The complaint is resisted by OPs who took several preliminary objections regarding maintainability of complaint, jurisdiction of the Forum to try complaint and status of the complainant as consumer etc. On merits, the OP No.1 alleged that the truck was purchased by the complainant No.2 and neither the complainant nor the OPs No.2 & 3 brought the defect to their notice regarding any manufacturing defect in the truck. Hence, they are not liable for any loss. The OP No.2 in its separate reply alleged that after careful examination of the truck, it was found that the body channel and chassis brackets have developed cracks and request was made to the OP No.3 to replace or give the permission to weld the same bracket and channel from authorized repairer and the OP No.2 wrote various letter to the OP No.3, but to no avail. The OPs No.3 & 4 have filed reply and denied the allegations levelled against them by the complainant. That there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led evidence in support of their claim/counter claim.

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

    4. It may be stated that undisputedly the truck bearing registration No. No.HP-63-1334 financed by the OP No.4 was purchased by the complainant from the OP No.3 through the OP No.2 in August, 2005 for consideration of Rs.6,96,092/-. The complainant alleged that after 2-3 months of the purchase of the aforesaid truck, i.e. October, 2005, it started giving problem and it could not be plied by her. That this fact was also brought to the notice of the OP No.2 who was asked to rectify the defect/problem developed in the truck, but the defect could not be rectified by the OP No.2 and the problem aggravated. Therefore, at the advice of the OP No.2, the truck in question was taken to Vasco Motors, Chandigarh, where, the complainant was told that it being major defect was a manufacturing defect developed during the warranty period. That, she could not ply the truck and it is lying parked and she thus sustained huge financial losses.

    5. The complainant in support of her case has also placed on record the copy of the invoice Annexure C-1 and copy of sale certificate Annexure C-2. Both these documents have been issued by the OP No.3, Goyal Automobiles, Authorized dealer for Tata Commercial Vehicle, Hamirpur. The complainant further relied upon the letter Annexure C-3 written by OP No.2 to OP No.3 wherein it was pointed out that major cracks have appeared in body channel and chassis bracket of vehicle in question within last three months and the vehicle is off the road and, hence request was made either to replace the aforesaid parts of the vehicle or to give permission to weld the chassis brackets and body channel of vehicle from the authorized service provider.

    6. The complainant has also relied another letter Annexure C-4 issued by the OP No.2 to OP No.3 whereas similar request was made to OP No.3 to look into the matter it being urgent. The OP No.3 then wrote letter dated 20.01.2006 to the OP No.2 and it was informed that the photographs and all the required details of the vehicle in question has been received by them and the case was being referred to ASO Chandigarh. The complainant also relied upon other letter dated 28.01.2006 issued by the OP No.2 addressed to Shri Venugopal Bhardwaj, Works Manager, of OP No.3, Goyal Motors, Hamirpur and request was made to do the needful and to carry out the repair of the defective parts i.e. body channel & chassis brackets of the truck. The complainant further relied upon letter dated30.01.2006 addressed by the OP No.2 to Gobind Motors, Barnala Road, Bhadaur, District Sangrur vide which request was made to carry out the necessary repairs in the vehicle to the satisfaction of the customer as the vehicle was being sent to them for repairs.


    7. Thus, from the aforesaid correspondence exchanged between the OPs No.2 & 3, it is manifest and clear that the body channel and chassis brackets of the vehicle in question developed major cracks within three months from its purchase, i.e. within the warranty period and this fact was brought to the notice of the OPs No.2 & 3 by the complainant. But, the vehicle in question could not be repaired to make it road worthy by the OPs No.2 & 3 thereby complainant was made to suffer huge financial losses as she had taken loan from the OP No.4 for purchasing the aforesaid truck and she was not in a position to repay EMI to her financier.

    8. It may be pertinent to state that during the pendency of this complaint, the complainant moved application for appointment of the Local Commissioner and sought permission to get the vehicle mechanically examined from the mechanical expert which was allowed consequently, the vehicle was got mechanically examined by the complainant from Works Manager, HRTC Rampur Bsr., who after mechanically examining the truck in question, i.e. HP-63-1334, submitted report dated 14.05.2007 which is placed on record. As per this report, the truck body channel found cracked and there was leakage of the engine oil resulting high consumption. The automizer pipes broken frequently as per the statement of the owner resulting consumption of HSD higher side. It is also reported that the truck is not in a position to ply on road and it is parked near Badhal after covering distance of 21,000 Kms. Therefore, from the aforesaid mechanical report issued by independent mechanical expert, it is clear that there is manufacturing defect in the vehicle which could not be rectified by the by the OPs No.2 & 3 that is why it has gone out of order and now lying parked.

    9. No doubt, the aforesaid truck has been manufactured by the OP No.1-Tata Motors Ltd., but nothing has been brought on record either by the complainant or by OPs No.2 & 3 whether they at any time brought this fact to the notice of the OP No.1-manufaturing company that the vehicle in question has developed manufacturing defect in its chassis and body channel and these parts are required to be replaced by the OP No.1. The complainant also failed to prove that there was any deficiency in service on the part of the OP No.1. However, it has been proved by the complainant by the aforesaid documentary evidence and by the admission of the OPs No.2 that the vehicle in question developed defect during the warranty period which is manufacturing defect that is why vehicle in question is still off the road. Therefore, the OPs No.2 & 3 are certainly guilty of rendering deficient service who indulged in an unfair trade practice by selling defective truck made of sub-standard material and complainant was made to suffer huge losses for no fault on her part. .

    10. For foregoing reasons/discussion we allow this complaint. Consequently, the OPs No.2 & 3 are jointly and severally directed to replace truck 1109 bearing registration No.HP-63-1334 bearing chassis No.416301 GUZ 122748 & Engine No.497 TC 85GUZ 120131 with the new one of the same make and model, duly functional and operational within a period of one months after the date of receipt of copy of this order, failing which they both shall be liable to refund the sale consideration of the truck amounting to Rs.6,96,092.99 to the complainant alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 20.03.2006 till making full payment of the aforesaid amount.
    The complainant is also held entitled to reasonable damages for the mental agony and harassment meted out by her at the hands of these OPs to the tune of Rs.50,000/- payable by OP No.2 & 3. The litigation cost is quantified at Rs.3,000/-. The complainant is however directed to hand over the defective truck in question to the OPs on receipt of the amount as ordered supra. The complaint against OP No.1 & 4 is dismissed being not maintainable.
  • adminadmin Administrator
    edited September 2009
    Chander Shekhar son of Sh. Kewal Krishan resident of House No. B, V.651, Guru Angad Nagar, Gali No.3, Chandigarh Road, Nawanshahar.
    (Complainant)
    Vs.

    1. M/s Tata Motors Limited, branch Office at Ferozepur Road, Ludhiana, through Branch Manager (Hire-Purchase)

    2. M/s Tata Motors Finance Limited, Bureau of Hire-Purchase, Credits Operating Division, Bezzola Complex, 1st Floor, V.N. Purav Marg, Chambur, Mumbai-400071 through M.D.

    3. M/s Dada motors Limited, Savitri Complex, G.T. Road, Ludhiana through its Manager.
    (Opposite parities)

    Complaint under section 12 of the Consumer Protection Act, 1986.
    ….

    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present:
    Sh. Subash Sharma Advocate for the complainant.
    Opposite parties no.1 & 2 ex-parte.
    Sh. Ashok Mittal Advocate for OP No.3.


    O R D E R
    T.N. VAIDYA, PRESIDENT:
    1. Complainant purchased a truck (registration no. PB.32E-9202) from opposite party no.3 and the same was financed by opposite party no.1 & 2, in June 2005. Price of the truck was Rs.7,30,000/- and totally financed by opposite party no.1 & 2. Opposite parties no.1 & 2 charged Rs.45,000/- as insurance amount for three years from the complainant. Loan was repayable in 46 monthly instalments of Rs. 18,930/- each. Till 20.8.2007, many instalments had been paid by the complainant to the financer. After purchased of the truck, complainant spent Rs.1,10,000/- i.e. Rs.55000/- for preparing cabin, Rs.13,000/- for preparing R.C. , Rs. 15,000/- were paid as calliberation charges, Rs.15,000/- for obtaining explosive permit, Rs.20,000/- for grant of route permit and Rs.30,000/- for safety fitments. In addition, a sum of Rs.59,616/- is lying with the opposite party no.3, which was paid immediately after taking delivery of the truck on 10.6.2005 and 13.6.2005. It was orally settled at that time that the amount will remain with them and in case of any default committed in payment of E.M.I, that amount will be adjusted against the said E.M.I.. Opposite party no.3 is still retaining this amount. On 24.8.2007, all instalments were paid, when opposite parties took illegal possession of the truck by force using musclemen and threatened to kill the complainant. Possessing of the truck is illegal, unlawful, without equity and natural justice. Therefore, they indulged in malafide trade practice, as 60% of EMI had been paid. No notice of default of monthly instalments was ever given nor any notice was served before taking illegal possession of the truck. In these circumstances, complainant filed this complaint under section 12 of the Consumer Protection Act, 1986, claiming that he has suffered loss of Rs. 10,00,000/- due to deficiency in service on the part of opposite party and sought direction for release of the truck and that he be permitted to sell the truck in open market and to deposit the outstanding amount in one go.


    2. Opposite parties no.1 & 2 in reply pleaded that complainant had been using the vehicle for commercial purpose to earn profit, so, not entitled to maintain the complaint. He does not fall within the definition of ‘consumer’. Further claimed that this Fora has no jurisdiction to try this complaint. They have admitted taking possession of the truck but claimed that it was taken in terms of agreement, due to default committed by the complainant after its surrender. Truck was under Hire Purchase Agreement with them as it was got financed by the complainant from them. They had right to repossess the vehicle in case of committing default in repayment of E.M.I.. Further averred that loan matters are not covered under the Consumer Protection Act. They had disbursed the loan of Rs.7,30,000/-@3,93% per annum repayable in 47 instalments of Rs.18,930/- each, except first instalment of Rs.18,976, starting from 11.7.2005 till 11.5.2009, qua which an agreement dated 10.6.2005 was executed between the parties. On 25.8.2007, complainant was in default of three instalments amounting to Rs. 54,418/-, apart from overdue compensation for belated payment. As they had charge over the vehicle under Hire Purchase Agreement, so, it was handed over by the complainant through his driver peacefully. No forcible possession was taken.


    3. Opposite party no.3 vide separate reply claimed that the complaint is false, frivolous, not maintainable against them and they have been unnecessarily dragged to litigation as the complainant has no cause of action against them. However, they admitted sale of the truck to the complainant. They denied having charged Rs.45,000/- as insurance amount for three years from the complainant. Averred that Rs.59,616/- was paid to them by the complainant as margin money of the vehicle. But denied any oral settlement with the complainant that amount shall remain with them and in case of default of payment, would be adjusted against the E.M.I.. No such amount is lying with them. Allegations are false. They never took possession of the vehicle. They simply sold the vehicle to the complainant and allegations that they took possession of the vehicle on 25.8.2007 are false and incorrect.


    4. In order to prove their contentions, complainant and opposite party no.3 led their evidence by way of affidavits and documents. Inspite of several opportunities having been granted, opposite parties no.1 & 2 failed to lead any evidence and as such their evidence was closed by this Fora vide order dated 24.3.2009.


    5. We have heard the arguments addressed by the ld. counsel for the complainant and opposite party no.3, gone through the file and scanned the documents and other material on record.
    6. First grouse of the complainant is against act of the opposite parties no.1 & 2 of taking forcible possession f the vehicle on 24.8.2007, upto which date had paid all the E.M.Is. regularly. In order to understand this aspect and allegations of the complainant, we have to look into agreement in the shape of ‘particulars of vehicle loan’ of the complainant given by the opposite parties no.1 & 2. Ex.C.2 is the copy of the particulars accompanied by Ex.C.1 invoice of opposite party no.3, showing that total price of the vehicle sold to the complainant was Rs.7,34,200/-. As per loan particulars Ex.C.2, Rs.4,200/- was made down payment by the complainant. Hence, loan of Rs.7,30,000/- was granted by opposite parties no.1 & 2 to the complainant. Insurance premium for the 2nd year Rs.18,000/- for third year Rs.15,000/- for fourth year 12,000/- was also added therein while calculating interest amount and E.M.I, all payable in 47 instalments. This document also contains details of all E.M.Is. payable on 11th of each month, commencing from date of loan i.e. on 11.7.2005.


    7. Now question is whether in conformity with Hire Purchase Agreement, complainant had paid all instalments upto August 2007, when the truck was repossessed by opposite parties no.1 & 2. This truck under loan hypothecation agreement Ex.C.4 was under lien with the opposite parties no.1 & 2 and they had a charge over the truck. Statement of account Ex.C.3 of opposite parties no.1 & 2 pertaining to account of the complainant clearly reflect that he had not paid all the instalments regularly. As instalments of April 2007 and July 2007 were not at all paid and few instalments prior and subsequent to those months were not paid in time and of the agreed amount of E.M.I.


    8. In these circumstances, we feel that opposite parties no.1 & 2 were entitled under the agreement of hypothecation, having lien on the truck, to repossess the same. But complainant claimed that it was forcibly taken by opposite parties no.1 & 2 with the help of musclemen by using force. Such allegations are denied by opposite parties no.1 & 2. They claimed that the truck was surrendered by the complainant through his driver. However, we can not believe this part that truck was surrendered by the complainant through his driver. No doubt, opposite parties no.1 & 2 were empowered under the hypothecation agreement to repossess the truck in case of committing default in payment of EMI by the complainant But before doing so, principles of natural justice, equity and fair conscience require them to issue a notice to the complainant that he had defaulted in payment of EMIs and consequently requiring him to put the truck in their possession or otherwise they will repossess it in accordance with law. But opposite parties had not adhered to such principles of natural justice or fair play by giving warning to the complainant. Repossessing the truck without such notice, in our view, certainly would amount to resorting to unfair trade practice by opposite parties no.1 & 2, despite the fact that they had lien over the vehicle. They infringed the principles of natural justice and fair play by repossessing the truck without any notice. Such act of the opposite parties no.1 & 2, in our view, amounts to mal practice for which they deserve to be penalized and compensation awarded to the complainant. But we can not order return of the truck to the complainant as opposite parties no.1 & 2 had lien thereon and complainant had defaulted in paying EMIs as per agreement.


    9. Though complainant has alleged that opposite party no.3 has retained Rs. 59,616/-. But qua this amount, no relief is sought by him. Defence of opposite party no.3 is that the amount was given as margin money. It is contended that such margin money consisted of payment of first insurance premium , temporary registration charges and documentation preparing charges and it is not refundable, nor qua this amount relief is claimed by the complainant. So, we can not conclude and affirm allegations of the complainant that the amount was paid to opposite party no.3 by way of security to pay EMIs in case of any default.


    10. Sequel to above discussions, we allow the complaint only against opposite parties no.1 & 2 and for deficiency in service committed by them order to pay compensation of Rs.50,000/- (Rs. Fifty Thousands only) to the complainant for repossessing the vehicle without issuing any notice to the complainant and also to pay litigation cost of Rs.2000/-(Rs. Two Thousands only). Compliance of the order be made within 45 days of the receipt of copy of the order
  • adminadmin Administrator
    edited September 2009
    C.C.No.92/2008
    Between

    Kalathuru Armugam,
    S/o. K. Narayanaswamy,
    Hindu, aged 34 years,
    9-751, NPR Complex,
    Gandla Street, Bhadurpet,
    Srikalahasthi – 517 644. …. Complainant

    And

    1. Autofin Limited,
    Rep. by its Authorized Signatory,
    140, Prender, Ghast Road,
    Secunderabad – 500 003.

    2. M.G. Brothers Auto Mobiles Pvt. Ltd.,
    Authorized dealer of Tata Motors,
    Dharga Mitta, Nellore.

    3. The Divisional Manager,
    TATA Motors Ltd.,
    Bombay House, 24, HOMI Modist,
    Mumbai – 400 001. …. Opposite parties

    This complaint coming on before us for final hearing on 15.04.2009 and upon perusing the complaint, written version, written arguments and other relevant material papers on record and on hearing Sri G. Ramaiah Pillai, counsel for the complainant and Sri. B. Narahari Reddy, counsel for the opposite parties and having stood over till this day for consideration, the Forum made the following:-
    ORDER
    DELIVERED BY Sri. M. SUBBARAYUDU NAIDU, MEMBER
    ON BEHALF OF THE BENCH

    This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to pass an order in favour of the complainant directing the opposite parties 1 to 3 to refund the repair charges which was levied during the warranty period on Rs.62,434/-; to pay Rs.27,000/- by second opposite party at Rs.1,000/- per day towards taxi charges engaged by the complainant; to replace the vehicle with a new one or to refund the cost of the vehicle which was purchased at price of Rs.3,77,480/- which is having a manufacturing defect by the opposite parties 1 and 3; to pay costs of Rs.2,000/- towards litigation expenses by the opposite parties and to pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

    2. The factual matrix leading to filing of this complaint is set out as here under:
    (a) The case of the complainant is that he is a businessman dealing in wholesale groundnuts at Kalahasthi. For his business, he needed a vehicle for purpose of touring, preferably a diesel car. While so, during January, 2007 he came to know through catching advertisement that TATA Motors Indica V-2 Diesel Turbo, a technologically Indica which is specifically designed to ensure environmental compatibility economical particularly trouble free performance, the complainant preferred to go for purchase of the said model and purchased from the first opposite party who is the dealer of opposite party No.2 company for Rs.4,20,000/- including all taxes and taken delivery on 25.01.2007 at Secunderabad (first opposite party). The warranty of 18 months from the date of purchase of vehicle irrespective of distance covered was issued.

    The complainant also paid an extra cost of Rs.4,000/- and obtained for further period of 18 months extended warranty in addition to the company warranty from opposite party No.1. After the purchase of the vehicle, it was duly registered with the registering authority at Tirupati bearing No. AP 03 AB 7299. As per the warranty, it permits four free services. The vehicle was given from time to time for check it up purpose. While so, on 31.05.2008 the engine of the said car was seized, it was given for its repairs with job card to the second opposite party who is the authorized dealer of opposite party No.3. Thereafter, it was kept for 27 days in garage and delivered the vehicle on payment of Rs.62,434/- towards replacement of 47 items of spare parts in the vehicle. Though, there is an obligation under the warranty to repair or replace free of charge such parts of the car which are defective, the opposite party No.2 deliberately charged the amount and recovered from the complainant much against the terms of the warranty and delivered the vehicle on 27.06.2008.


    (b) In view of the delay in delivering the vehicle after its repairs, the complainant has suffered for traveling without conveyance for 27 days and he was forced to engage a taxi at Rs.1,000/- per day including driver’s batha for purpose of touring, from the vehicle contractor 9/448, Gandla Street, Srikalahasthi by name one Uma on rental basis. Further, the allegation of the complainant in para 7 of the complaint is that defective car was supplied by the first opposite party on 25.01.2007 which failed to give performance which one would expect from a new car. Admittedly the said car developed several problems which necessitated the opposite party No.2 to change several parts in the said car within the warranty period.


    It goes undoubtedly that the car must be a old one or the car with manufacturing defect otherwise there is no necessity to replace several parts, i.e., 47 items which costs Rs.62,434/- according to the job card issued by the second opposite party. In this connection, the complainant wanted to test the vehicle by competent authority through the Hon’ble Forum whether the vehicle is having manufacturing defect for which separate petition is filed. It is settled law that the said car which was purchased from the first opposite party must be worthy of its price and serve the purpose for which it is intended. It is further alleged that the car which purchased as a new car, if found subsequently as not motorable with persistent defect, the consumer / (complainant) is entitled for refund of the cost of the price or replacement of the car. Hence, the complainant got issued a legal notice on 11.07.2008 demanding the opposite parties 1 to 3 to refund the costs of the material worth Rs.62,434/- under the job card which were replaced by opposite party No.2 on 31.05.2008 and to pay Rs.27,000/- towards conveyance charges for 27 days which he took on hire basis during the period the vehicle was kept in garage.
    There was no response from any of the opposite parties 1 to 3 in this regard nor sent any reply to the above said legal notice and remained unmindful without discharging their liability within the warranty period. There are causes of action to file this complaint before this Forum. This Forum has jurisdiction to entertain this complaint. Hence, the complaint.

    3. In response, the third opposite party resisted the complaint by filing written version / objections and the same was adopted by attaching a memo along with written version before this Forum by the first and second opposite parties. The third opposite party while denying the material allegations contained in the complaint in paras 1to 8 of its written version and narrated further in paras 9 to 14 of the written version. In para 9 of the written version filed by the third opposite party that the warranty given to any vehicle is limited to replacing or repairing, free of charge, such parts of the car which in the opinion of the manufacturer company are defective and are brought to the dealers within the warranty period.

    The further condition is that the warranty shall not apply if the car or any part thereof is repaired or altered otherwise than in accordance with the company’s standard repair procedure or by any person other than the company sales or service establishment authorized dealers, service centre or service points in anyway. It is further submitted that the complainant has availed all the free services. After the free services, the complaint has come for some service but the complainant did not come for regular services after the vehicle reaches 42,124 kms, as required. Later on, the complainant has got serviced the vehicle twice when the meter recorded 60,611 kms and 64,380 kms respectively, however the complainant did not give the vehicle for any servicing at any time thereafter. As the vehicle was not serviced within time, necessary lubricants such as coolant, engine oil etc., were not replaced within time and as a result the vehicle was run without adequate or required lubricants resulting in the seizure of the engine.

    The complainant even by observing the defect and in not bringing the vehicle for service within the time as was required, had indeed given the vehicle for major repairs. The coolant was also not changed within time and at the time of giving the vehicle for repairing work, the complainant had agreed for payment of the estimated bill amount and the same was written and signed by the complainant in the job card. It is stated that after repairing works being done on the vehicle, the complainant got satisfied with the vehicle and took delivery of the vehicle by signing in the job card. It is submitted that after using the vehicle for considerable time, the complainant has issued the above notice which is an afterthought and has been issued to get wrongful gain.

    It is further submitted that there is neither any prima facie case being made out by the complainant against the opposite parties as to ‘deficiency of service’ nor any case of ‘consumer dispute’, therefore the complainant is not entitled for any relief much less the relief for refund of cost of repairing charges or conveyance charges and / or cost of the vehicle etc. It is further submitted that the complainant is aware of that he is not entitled for any refund of the repair charges or conveyance charges as allegedly incurred, indeed he has filed the above complaint with an ulterior motive to harass the opposite parties including this answering opposite party by making some frivolous allegations of the vehicle being an old one and with manufacturing defects etc., which are nothing but vexatious, concocted and an abuse of process of law.

    It is again further submitted that there is no cause of action for the complainant to file the instant complaint. The alleged cause of action is invented by the complainant for the purpose of harassing the opposite parties. This Hon’ble Forum has no jurisdiction to entertain the above complaint as there are no merits made there in the complaint. It is prayed that the complainant is not entitled for any relief much less the reliefs prayed for and the instant complaint is required to be dismissed with costs.


    4. In support of the averments made in the complaint the complainant filed his affidavit and also filed 7 documents which are marked as Exs.A1 to A7. Ex.A1 is the leaflet containing particulars of Indica V2 Diesel car, its main features and information; Ex.A2 is the extended warranty of the said Diesel Indica V2 car; Ex.A3 is the tax invoice dated 29.01.2007 and its terms and conditions; Ex.A4 is the original traveler receipt dated 27.06.08 issued by K. Uma, Kalahasthi; Ex.A5 is the tax invoice dated 27.06.2008 issued by the second opposite party relating to the repairs of the car of 47 items of spares and its cost totaling to Rs.62,434/-; Ex.A6 is the office copy of legal notice dated 11.07.2008 issued by the complainant’s advocate to the second opposite party and copies marked to the remaining opposite parties; Ex.A7 is the Photostat copy of telegram issued by the complainant’s advocate to the second opposite party.


    5. In support of the averments made in the written version / objections, the opposite parties filed four documents which are marked as Ex.B1 to Ex.B4. Ex.B1 is the office copy of reply notice dated 25.08.2008 issued by the learned counsel for the opposite parties to the complainant’s advocate; Ex.B2 is the acknowledgement from the counsel for the complainant with regard to the above said reply notice; Ex.B3 is the service history calls of the vehicle bearing No. AP 03 AB 7299 commencing from 21.02.2007; Ex.B4 is the job card issued by the second opposite party dated 31.05.2008 and an undertaking given by the complainant for payment of about Rs.60,000/- towards major repairs done in the said car in the garage.


    6. Both the learned counsels have filed their respective written arguments in support of their case. The complainant filed his affidavit as evidence. No affidavit is found in the record on behalf of the opposite parties.


    7. Basing on the pleadings and the documentary evidence, the points that arise for determination are:-
    1 Whether there is any deficiency in service on the part of the opposite parties
    towards the complainant?
    3. Whether the complainant is entitled for the reliefs as prayed, if so to what
    extent?
    3. To what result?


    8. Point No.1:- (a) There is no dispute about the purchase of Tata Indica V2, Diesel Turbo car and subsequent developments raised in the complaint as far as payment of Rs.62,434/- on spare parts of 47 items are concerned as alleged in it. The point for determination in this consumer case is that whether the complainant has clearly made out his case and proved about the allegations contained in the complaint. The learned counsel for the complainant Sri G. Ramaiah Pillai has vehemently argued that the facts which are contained in the complaint are again reiterated in the written arguments referring the documents filed by him in support of his case.

    He further argued that the second opposite party deliberately charged amount of Rs.62,434/- and recovered from the complainant much against the warranty conditions and the said car was delivered on 27.06.2008 on payment of amount under compelling circumstances as he needed the vehicle. He also further argued that as the above said car was kept for 27 days in workshop, one can imagine to what extent the vehicle was damaged and the complainant was also put to much inconvenience for the want of car for those 27 days for which he was forced to engage a private vehicle on hire basis. This fact is supported by Ex.A4. The above said learned counsel further contended that the above said car should be an old one or with manufacturing defect which developed several problems and necessitated the opposite party No.2 to replace 47 items within warranty period. So, the opposite parties are liable to pay Rs.62,434/- to the complainant towards replacement of 47 spare parts in new vehicle which is within the warranty period and to award costs and compensation. The complaint may be allowed with costs.

    (b) The learned counsel for the opposite parties Sri B. Narahari Reddy has also vehemently argued that the complaint is not maintainable as the prayer is for refund of repair charges for the which the civil court alone has got the jurisdiction to entertain the petition and on this ground alone the above complaint is liable to be dismissed. He further argued that he has clearly mentioned all the points in para 3 of written arguments that the warranty given any vehicle is a limited to replace or repairing free of charges which parts of the vehicle which in the opinion the company or defective brought to the dealer or authorized agent with in the warranty period. The averments contained in the written version are again repeated in para 3 of written arguments with regard to the availing service for the car from time to time. He also further argued that after repair, the complainant was satisfied with the service of the second opposite party and took delivery of the car by signing in the job card.

    The complainant did not raise any objection or pleaded before issuing notice to the opposite parties about entitlement of repair charges as it can be treated as free in view of additional warranty. With his own accord and satisfaction, after undertaking to pay (as paid service), it is mentioned in the job card because major and valuable parts are replace with the consent of the complainant. There is no deficiency in service on the part of the opposite parties. The learned counsel further contended that it cannot be found that there any manufacturing defects after the car ran for more than 1 lakh kms. It is clearly mentioned in Ex.B3 i.e., service history details of the car that the complainant accepted to pay the repair charges of his car. It is clearly supported by Ex.B4. Finally the learned counsel for the opposite parties prayed for dismissal of the complaint with costs.

    (c ) On perusal of the entire record, it clearly goes to show that the above said Tata Indica V2 ran more than 1 lakh kms within a short period (25.01.2007 to 11.08.2008) approximately, as it is evident from Ex.B3 document, service history details. It contains details of free services as well as paid services. The complainant has not filed the warranty – terms and conditions applicability to the vehicle for the reasons best known to him. But he filed extended warranty slip, i.e., Ex.A2. It does not contain any terms and conditions as such. Ex.A2 is related to the policy. It is true that there is an exchange of legal notices between the parties before filing of this complaint. In fact, the complainant has availed the service of second opposite party after filing of this complaint before this Hon’ble Forum on 06.10.2008. To determine this consumer case, it more appropriate and relevant to look into the contents of Ex.B3, ie., service history details of the car whether it is manufacturing defect or rough use of the vehicle by the complainant. Moreover Ex.B4 is the vital document which clearly signifies that it is a paid service and the complainant has clearly accepted for payment of repairs because the car is seized for want of repairs and complainant personally estimated approximate bill amount to about Rs.60,000/- and signed in Ex.B4. When such is the state of affairs relating to the said car, how the complainant raised the fact of manufacturing defect in the car after running of more than 1 lakh kms. He availed all the free services for his car within 5 months after purchase and noting down the kms 21451 and further paid service commences from 24.08.2007 to 11.08.2008. The complainant did not turn up for service of his car from 27.12.2007 and on that date the speedometer shown 64383 kms until 27.06.2008- 95981 kms. The details which are contained in Ex.B3 clearly goes to show that the complainant has not got proper service at appropriate time and thereby the vehicle was seized for want of repairs and thereby the complainant himself acknowledged the liability to pay around Rs.60,000/- towards repairs of the same was noted in Ex.B4. It established the fact that the said car was extensively used and that caused damage to the vital parts of the vehicle and that necessitated the change of more valuable spare parts for making repairs of the vehicle. Subsequently, the complainant cannot raise the plea of manufacturing defect at this stage. It is clearly evident that the complainant has clearly mentioned in Ex.B4 for payment of cost of repair of the vehicle. One cannot blow hot and cold in the same breath. While accepting for the payment of repair amount according to Ex.B4 to the second opposite party, the complainant cannot further allege that claiming of refund of the amount once again from the opposite parties. The term ‘deficiency’ is defined in Section 2(1)(g) as follows: ‘deficiency’ means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

    In its decision in Lucknow Development Authority Vs. M.K. Gupta (1994) I SCC 243, the Supreme Court examined the scope of the term ‘service’ in the context of a consumer protection legislation. The Supreme Court in its decision in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) I SCC 66 had the opportunity to explain the nature of the test for ascertaining deficiency in service. According to Webster’s New Collegiate Dictionary defect means deficiency. Though both the words defect and deficiency mean almost the same, the Consumer Protection Act gives two distinct definitions and the words must be used and interpreted as per the definitions given in the said Act of 1986. Further the word ‘defect’ under Consumer law is used in relation to goods and the word ‘deficiency’ in relation to services.


    In our opinion, after scrutinizing the facts, circumstances of the case and material documents filed before us, it is crystal clear that the complainant has not proved his case and miserably failed in his attempt. Man may lie but documents will not lie. He did not approach this Forum with all clear fairness on his part. The complainant did not file the warranty or additional warranty covering 18 months + 18 months, in total 3 years before this Hon’ble Forum to read the contents of it (terms and conditions are applying) and verify them to assess the liability of the opposite parties for the reasons best known to the complainant. If at all there is another four services are free in view of the additional warranty, what is the necessity for the complainant to agree for payment of the charges for repair as per Ex.B4,i.e., job card issued by the 2nd opposite party. The complainant voluntarily agreed to pay approximate expenses of Rs.60,000/- as per Ex.B4. Further he cannot raise for refund of it and he is stopped from claiming anything in view of major repair and most valuable parts are replaced as consented by him to pay for it. There are no merits in this consumer case. There is no deficiency in service on the part of the opposite parties towards the complainant. This point is answered accordingly.


    9. Point No.2:- In view of the above discussion in Point No.1, it is crystal clear that the complainant has not established and proved his case to claim any reliefs sought for in the complaint. A complaint can be filed under Consumer Protection Act in respect of unsatisfactory service. If the Forum is convinced that any of the allegations contained in the complaint about service are proved, it can provide any of the applicable types of remedy specified in Section 14. The
    [FONT=&quot]
    [/FONT] consumer / complainant has to prove deficiency of service. Here, there is absolutely no deficiency in service on the part of the opposite parties. So, the complainant is not entitled to get any reliefs prayed for in the complaint. This point is answered accordingly.
    9. Point No.3:- In the result, the complaint of the complainant is dismissed without costs.
  • SidhantSidhant Moderator
    edited September 2009
    Ch.S.Jithender,

    413/A, Budha Nagar,

    Uppal Depot,

    R.R.District. …Complainant/Petitioner



    And

    1. The Malik Cars,

    3-6-422 & 422/A,

    Street No.3, Himayatnagar,

    Hyderabad.

    2. The TATA Motors

    Pune, Maharastra. ….. Defendants/Opposite Parties


    O R D E R



    1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against the opposite parties to pay back the cost of the vehicle of Rs.9,07,653/- +D.D. charges of Rs.300/-, to pay back the interest charged by the State Bank of Hyderabad, to return back the extra fittings of the Car, to pay him the compensation and for costs.



    2. The case of the complainant as set out in the complaint in brief is that he purchased a TATA Safari on 26-07-2007 from opposite parties by paying Rs.3,00,000/- on 21-07-2007, Rs.6,00,000/- on 26-07-2007 through a D.D. and Rs.7,653/- on 26-07-2007.



    3. The sales men told him in the beginning that the above price includes the extended warranty charges but, after paying the Rs.3,00,000/- + D.D. charges on 21-07-2007, the sales men told him that the price was exclusive of extended warranty charges.



    4. On 26-07-2007 he received the vehicle as he paid the balance amount. On the same day he found the head lights of the vehicle not functioning. As per the advice of the sales men, he contacted the help line of TATA, who came to the spot two hours later to Rasoolpura Cross roads, and from there to the shop, where he had done extra fittings to the car. The help line people struggled for one hour and decided to take the vehicle to the workshop at Towlichowki and produced the vehicle on the next day at Himayatnagar Show Room. While, checking the fuse box under the bonnet of the Car, the Technicians climbed on to the car over the crash guard and caused damage to the front bumper.



    5. While so, on 02-08-2007, the front left door could not be locked as it was opening while in motion. He called for the Mechanic from the opposite party No.1, who took the vehicle to the workshop and delivered back on the next day.



    6. On 07-08-2007 while he was returning from Srisailam in the said car, the A.C stopped functioning and he was forced to travel without AC by opening the window glasses. On the next day he issued a notice to opposite parties demanding a new vehicle or in the alternative the cost of the vehicle. On 11-08-2007 the opposite parties inspected his car and noted non functioning of AC, rubbing of back door to the back bumper, damages on the body of the car, faulted AC winds, faulted speakers, non fixture of the floor carpet in a proper manner, missing of some nobs, clip opening, un even shape of the middle seat, gear nob not in a correct position and hard working of the clutch. They took the vehicle to the workshop along with the decorative items. However, there is no response from the opposite parties even after his notice. Hence the complaint.



    7. Opposite party No.1 in the counter denied various allegations made in the complaint specifically. He denied that the cost of the vehicle included the extended warranty charges. There was no misleading information from their sales men. It is denied that the head lights of the vehicle were not functioning. It was due to the mishandling of the operating system of the vehicle that the head lights did not come for some time. However, the same was explained and was rectified. The vehicle could not be attended on the road and as such the same was taken to the workshop. It is denied that the crash guard of car was damaged during the checking of the fuse box. It is also denied that the front door refused to lock in motion. It could be due to the negligence or handling of the vehicle by a person. However, to satisfy the complainant they replaced a new lock without collecting any charges. The AC was also rectified.



    8. It is denied that the sales executives of opposite party No.2 inspected the car and found the defects as alleged in the complaint. A reply was issued to the notice of the complainant. The complainant was informed over phone about the rectification of the defects, but he himself did not take away the vehicle.



    9. There is no deficiency in service or defect in the vehicle. The complainant himself has avoided taking of the vehicle from the workshop, for which, he is liable to pay charges at Rs.200/- per day. Finally, the opposite party No.1 prayed for dismissal of the complaint.



    10. Opposite party No.2 filed a separate counter. It is pleaded that the complainant failed to furnish any proof to show that the vehicle was having any manufacturing defects. It did not suffer from any such defects. If there were to be any such manufacturing defects, it would not have run for 1233 Kms. There cannot be any order for replacement of the vehicle or refund of the price except in a case where there is the manufacturing defect.



    11. It is further pleaded that opposite party No.1 through his letters dated 23-08-2007 and 13-11-2007 informed the complainant that the problems pointed out by him were attended and the repairs were carried out. The vehicle was made road worthy and complainant was requested to take delivery of the vehicle. But he refused to do so. There was no deficiency in service. There is no pending problem with vehicle and as such there can not be any complaint.



    12. Opposite party No.2 also advanced a case similar to the one as done by opposite party No.1 with regard to the facts of the case. Finally, opposite party No.2 also prayed for dismissal of the complaint with exemplary costs.


    13. The points that arise for consideration are:-

    1. Whether there is any deficiency in service on the part of the opposite parties? and if so, whether the complainant is entitled for refund of the cost of the vehicle along with compensation etc.,

    2. To what relief?


    14. Point No.1:- To substantiate his case, the complainant has chosen to file his evidence affidavit and relied on Exs.A1 and A6. On the other hand, the opposite parties also filed the evidence affidavits and relied on Exs.B1 and B2. Both sides filed written arguments and also advanced oral arguments.


    15. As seen from the allegations raised in the complaint itself, it is clear that there were some short comings in the vehicle initially, such as head lights not functioning, left door refused to lock and non functioning of AC. Admittedly, the helpline people of opposite party attended to all the repairs free of cost.

    The contention of the complainant is that he suffered a lot both mentally and physically due to the failure of AC functioning on his way back to Hyderabad from Srisailam. It is unfortunate that the AC failed on the way. It is only a mechanical failure and cannot be termed as manufacturing defect. With regard to the non functioning of the head lights, the opposite parties contended that the complainant had no knowledge of operation of the head light switches. It is the case of the opposite parties that the operating system of the vehicle was mishandled, which resulted in the failure of the head lights. As already noted, the same was already rectified.


    16. The complainant also complained that the crash guard of the car was damaged and also the front bumper during the period of repair but there is no evidence to substantiate the same.


    17. The next contention of the complainant is that the front door refused to lock in motion. According to the opposite parties, the driver of the vehicle might have opened the lock by pulling the hand break. According to them, in such a condition, the door would refuse to lock. Any way, admittedly, the opposite parties replaced the lock free of cost.


    18. With regard to the failure of the AC on the way also has been rectified by the opposite party in their workshop. Thus all the defects have been rectified by the opposite parties free of cost.


    19. During the pendency of the complaint this Forum was pleased to direct the Road Transport authority for testing the vehicle by an Automobile Engineer. Accordingly, the RTA, Hyderabad at appointed one Motor Vehicle Inspector for examining and testing the vehicle, which remainded with the opposite parties, as the complainant could not take the vehicle with him even after effecting repairs.

    The M.V. Inspector, who inspected the vehicle in question in the presence of the complainant and the representative of opposite party No.1, submitted his report to the effect that the vehicle was in good condition without any defects that the defects complained by the complainant had occurred incidentally and that they were rectified by the opposite party No.1 under warranty. Thus, this report dated12-02-2009 of the M.V. Inspector makes it clear that all the defects have been rectified and that the vehicle has been in good running condition without any defects.



    20. The opposite parties contended that the complainant failed to take delivery of the vehicle inspite of their notices under Exs.B1 and B2. These two are the registered postal covers which have been taken delivery by the complainant. So, no deficiency in service can be attributed against the opposite parties.



    21. As rightly contended on behalf of the opposite parties, there have been catena on decisions to the effect that there cannot be refund of the cost of the good, if there are no manufacturing defects. In a decision reported in III 1994 CPR Page 395 in M/s. TATA LOCIMITIVE & Co., Ltd., Vs. M.Moosa, the National Commission clearly held that if the defects are rectified, the claim for refund of the price of the car should not be allowed. In another decision reported in IV-2006 SCC Page No644 Maruti Udyog Ltd., Vs. Susil kumar Gogtra, the APEX Court held that a direction for replacement of the car is not justified. It was further held that the defective part alone could be replaced. Similar views were taken by the APEX Court in II-2004 SCC Page No.278 in Jose Philip Mampillil Vs. Premier Automobiles Ltd., and another.



    22. As a matter of fact the complainant failed to make out that there was any manufacturing defect in the vehicle. So he is not entitled for refund of the price of the vehicle. The complainant failed to take out any expert concerning the automobiles to prove that there were any manufacturing defects or technical defects in the vehicle. In fact the M.V. Inspector who was appointed as the Commissioner, inspected the vehicle and found it to be in good condition without any defects.

    The minor problems which occurred were already attended to by opposite party No.1 free of cost. The complainant instead of taking delivery of the vehicle has unnecessarily come to this Forum. So, he is not entitled for any of the reliefs claimed. In other words the complainant miserably failed to make out that there was deficiency in service on the part of the opposite parties. So, he can not ask for any compensation. This point is answered against the complainant.
  • SidhantSidhant Moderator
    edited September 2009
    The complainant availed a vehicle loan of Rs.532000/- for purchase of a Tata Sumo Reg No.KL 9 N4253. Immediately after availing the loan, opposite party issued a 45 installments payment chart to the complainant. Complainant had remitted the entire loan amount specified in loan agreement and as stated in the payment chart. After the due payment of the full loan amount the complainant approached the opposite party demanding loan closure certificate and No Objection Certificate. The opposite party has given totally irresponsible false replies.

    At long last the opposite party stated that there is some balance outstanding from the complainant i.e installment of 24/11/2006. The allegation is not true because there is no outstanding liability pending with the opposite party as on 24/11/2006 as alleged. Complainant through DD No.582550 of Canara Bank Branch, Sreekrishnapuram has already remitted the installment of 24/12/06 and that amount was duly collected by the opposite party. Complainant issued lawyer notice against the opposite party on 18/3/08 for which opposite party has not replied. So the complainant

    filed this complaint seeking an order directing the opposite party to pay an amount of Rs.60,000/- as compensation for mental agony and financial stress suffered by the complainant and hand over the No Objection Certificate to the complainant.



    2. Opposite party has not appeared before the forum though notice was served. Hence set exparte.



    3. Complainant filed affidavit and marked documents as Exts.A1 to A5.



    4. Matter was heard.



    5. Points to be considered are

    1.

    Whether there is any deficiency of service on the part of opposite party?
    2.

    If so, what is the relief and cost?



    6. Points 1 & 2: We perused the relevant documents on record. The grievance of the complainant is that even though he paid all the installments correctly he did not get back the No Objection Certificate and other documents from the opposite party. In support of his claim, the complainant produced payment receipts and photocopies of Demand Draft and is marked Ext.A3 series. From the evidence on record, it can be seen that the complainant has paid the entire loan amount. Opposite party has claimed an amount of Rs.45,801/- as due to the opposite party by Ext.A1 letter. But the opposite party has not appeared before the forum to prove the same. Complainant has stated in affidavit that the whole loan amount was repaid and there is nothing outstanding. There is no counter evidence to that one tendered by the complainant. The act of the opposite party in not issuing the No Objection Certificate even after payment of the whole amount amounts to deficiency of service.


    7. In the result complaint allowed. Opposite party is directed to handover No Objection Certificate to the complainant along with Rs.5,000/- (Rupees Five thousand only)as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings within one month from the date of communication of the order failing which the whole amount shall carry 9% interest from the date of order till realisation.
  • SidhantSidhant Moderator
    edited September 2009
    Dr.Narinder Singh son of S.Kirpal Singh, resident of 167-L, Model Town, Ludhiana.

    Versus

    1.TATA Motors, Passenger Car Business Unit, 8th Floor, Center No.1, World Trade Centre Caffe Parade, Mumbai-400005 through its Manager Director.

    2.Garyson Motors Pvt. Ltd., Corporate Office; Sherpur Chowk, G.T.Road, Ludhiana its Managing Director.


    Complainant is a practicing doctor, purchased a TATA Indica DLG Turbo-III Car from OP-1 through its dealer OP2 on 14.10.2007. OP sold the car on condition of giving discount of Rs.18000/- in cash and agreed to provide free accessories such like foot-mat, Mud-Flap and body cover and Tubeless tyres. On the date of delivery of the car Mr.Sandeep Berry, executive of OP2 had got silver coloured car ready and mud-flap were kept inside the car without fitting and on query by the complainant for not fitting mud-flap, OP2 said that it being Sunday mechanic was not available. They issued delivery receipt dated 14.10.2007 but did not provide sale invoice, sale letter owner’s manual and service book and other documents necessary for registration of the vehicle, also body cover of the car was not given on the pretext that they were out of stock and would be given alongwith the documents of the vehicle. Subsequently, on checking found that tubeless tyres were not tubeless as promised. Visited OP demanded documents of the vehicles to enable its registration, but OP demanded Rs.2000/- in cash for delivery thereof. Subsequently, when compelled, OP delivered body cover of the car, but remained adamant not to pay discount of amount of Rs.2000/-. Consequently on account of such tactics adopted by the OP, got served legal notice dated 26.11.2007, calling upon them to deliver original, sale letter, service book and other papers sale letter owner’s manual and service book.

    OP gave reply dated 11.1.2.2007 demanding Rs.1600/- to deliver the documents. Consequently, complainant in his complaint under section 12 of the Consumer Protection Act, 1986 has alleged that OP has caused harassment and mental agony to him, as he could not use his car for five months due to want of documents and consequently not getting it registered with Motor licensing authority. It is also pertinent to say that due to unbecoming of the OP, he had to face police action also. Therefore has sought direction against the OP to release documents of the vehicle including sale invoice, to give cash discount as agreed and also Rs.50000/- compensation for harassment.

    2. OP1 in reply pleaded that entire transaction was with OP2, there is no allegations against them qua negligence, they have no role to play in the dispute. They averred that complaint is not maintainable. Further complainant had taken delivery of the vehicle after proper inspection and satisfaction. That the complainant demands are beyond the warranty terms.

    3. OP2 vide his separate reply have also controverted allegations of the complainant that the complaint is not maintainable and the complainant is abusing the process of the Forum, as he is taking benefits of his own wrongs. He has filed the complaint to avoid liability of Rs.1600/- due from him. When that amount was demanded from the complainant he abused the employees of OP2. Thus, denied that they had agreed to provide the discount of Rs.18000/- on the sold vehicle to the complainant. The discount agreed was of Rs.15000/- and in addition had agreed to provide free accessories such as foot-mat, mud-flap and body cover. In addition to price of the car complainant was also required to pay Rs.600/- for temporary registration certificate and temporary number.

    Discount of Rs.15000/- was given to the complainant and adjusted against the price of the car. A sum of Rs.1600/- is still due from the complainant and all accessories were provided at the time of delivery of the vehicle. Complainant called to collect the documents including sale invoice, body cover and also to pay the outstanding amount of Rs.1600/-, but he lingered the matter on one pretext or the other, then on 23.11.2007 complainant requested them to collect Rs.1600/- from his Nursing home, so then Tarun Kumar and Sandeep Berry, Sales Executives of OP.2 went to Nursing home of the complainant along with Body cover and sale invoice and documents. But the complainant misbehaved with the employees and refused to pay the outstanding amount of Rs.1600/-, he snatched body cover from them and made a complaint with Police station Division no.3, Ludhiana. But the matter was settled. The complainant agreed to pay the outstanding amount of Rs.1600/- and thereafter OP2 was to give the sale invoice, owners manual and service booklet. The notice dated 26.11.2007 of the complaint was replied. No discount of Rs.2000/- was ever agreed and the complainant has filed the complaint on false allegations.

    4. Both the parties adduced their respective evidence by way of affidavits and documents and stood heard through their respective counsels. We have also gone through the record carefully.

    5. Vide this Forum order dated 17.07.2008, OP2 delivered invoice and service book and other documents relating to the sale of the car to the complainant. Therefore, this prayer of the complainant stands met after our intervention.

    6. The question which probably brought parties to the blows taking controversial stand is what amount of discount on sale of car was offered by the OP to the complainant. Complainant claims this discount was Rs.18000/-whereas OP has given discount cash of Rs.16000/- only. It is for such reason complainant says that out of discount of Rs.18000/-, Rs.16000/- was adjusted by OP against sale of vehicle and balance of Rs.2000/- was agreed to be paid subsequently which they never paid.

    7. Qua this aspect of allegations of the complainant we have on record his affidavit Ex.CW1/A stating that the vehicle was delivered by the OP2 by giving delivery receipt Vide Ex.C4 dated 14.10.2007. Subsequently OP had properly issued sale invoice Ex.C7 dated 26.10.2007 therein OP have mentioned dealer price Rs.356802/-and given discount of Rs.14232.89. Total cost of the car recorded in the invoice is Rs.385390/- exclusive of VAT of Rs.42821/-. The total cost is mentioned after deducting discount of Rs.14232.89. This detail invoice was given by OP2 to the complainant after our intervention by passing order on 17.7.2008.

    8. However, when the complainant agitated grievance by serving legal notice Ex.C9 dated 26.11.2007 to the OP stating that they have neither received sale invoice nor Owner’s manual service booklet and till date OP has not delivered the same to him. In response OP answered the notice vide reply Ex.C6 dated 11.12.2007. It is admitted in para.2 of the notice by OP2 that total price of the vehicle was Rs.400390/- and Rs.600/- was payable towards temporary number and number plate. Out of this price, Rs.15000/- was given discount in addition to providing free accessories. After adjustment of the amount, a sum of Rs.1600/- is still due. The complainant was advised to receive the documents including the invoice on payment of balance of Rs.1600/-.

    9. It is in the aforesaid backdrop matter for consideration whether discount was of Rs.18000/- or 15000/- or Rs.14232.89 as recorded in invoice Ex.C7. Had the discount amount of Rs.14232.89 as referred in Ex.C7, then OP2, would not have stated in reply of the notice that the discount was given for Rs.15000/- only. OP2 in their written reply has specifically pleaded in para no.3 that complainant agreed to pay out standing amount of Rs.1600/- and then they will provide documents of the vehicle to him. That agreement, since then, has not seen light of the day and is withheld.

    10. Invoice Ex.C7 was required to be prepared on 14.10.2007 when the vehicle was delivered and sold to the complainant. But it bears date of 26.07.2007. So, apparent those entries in invoice were mentioned by the OP to show laterin discount of Rs.14232.89 only. Though himself admitted discount of Rs.15000/-. It is pertinent to note that price of the car sold by the OP2 to the complainant in their price list Ex.C1 is shown Rs.400390/-. After discount of Rs.15000/- this price comes to Rs.385390/- which is shown as price of said car. Probably OP.2 wanted to play trick with the complainant and consequently for such reason failed to deliver invoice in his favour at the time of delivery of the vehicle. So, we have no reason to disbelieve version of the complainant that discount of Rs.18000/- was agreed to be given by OP2.

    11. Thought OP2 have shown Rs.1600/- as due from the complainant in their statement, copy of which is Ex.R1. But when discount amount was of Rs.18000/- instead of Rs.15000/- as shown. Hence, there is no question of any balance due from the complainant to OP2.

    12. The complainant has also suffered harassment when he was compelled to file complaint against OP for not giving documents of the vehicle necessary to get it registered. He must have faced inconvenience due to non-supply of such necessary documents by OP2 to the complainant. Therefore, it is a clear cut case of harassment wherein OP2 has failed by not delivering documents to the complainant.

    13. As such it is apparent that nothing is due from the complainant qua price of the car and OP2 resorted to unfair trade practice by withholding the documents of the complainant, causing harassment to him. Therefore we allow this complaint and as a result thereof direct OP2 pay compensation of Rs.10000/- and litigation cost of Rs.2000/- to the complainant. Order be complied within 45 days from the supply of free copy of this order.
  • SidhantSidhant Moderator
    edited September 2009
    Shri Suresh Kumar S/O late Shri Roop Dass,

    R/O Village Kuwala, P.O. Bhareri,

    Tehsil Kumarsain, District Shimla, H.P.







    … Complainant.

    Versus





    1. The Sikand & Company (Tata Motors)

    Commercial Vehicle Dealer,

    Through its Proprietor/Manager Director,

    Chambaghat, Solan, District Solan, H.P.


    2. The Area Service Manager,

    Tata Motors Ltd.

    Area Service Office,

    1st Floor, SCO, 170-171-172,

    Sector-17C, Chandigarh.

    …Opposite Parties

    O R D E R:

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OP. The complainant avers that, on, 30.05.2006, he purchased a vehicle Tata Model SFC 709 Tipper bearing registration No.HP-63-1975, from the OPs for a consideration of Rs.7.30 lacs. He avers that after putting the aforesaid vehicle on road, some major as well, as, minor defects were noticed during the existence of warranty, which after carrying repairs, by the OPs, are still persisting.

    The complainant further proceeded to aver that the defects so erupted during the warranty period, as detailed in paragraph 5(c) of the complaint, could not be rectified by the OPs, after repeated repairs, hence, appears second hand vehicle. He further avers that legal notice dated 25.12.2006 was also issued to the OPs calling upon them to either refund the margin money amounting to Rs.89,000/- along with interest, or to replace the defective vehicle, with a new one, which also fell on deaf ears. It is averred that since the defects in the vehicle has erupted during the existence of the warranty period, the OPs are under legal obligation to carry out the repairs. Hence, this complaint averring deficiency in service on the part of the OPs 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, to the complaint, raised preliminary objections vis-à-vis suppression of material facts, status of the complainant as a consumer etc. On merits, it is admitted that the vehicle was sold to the complainant against margin money of Rs.89,000/-, who got it financed and all necessary documents, i.e. sale letters and bills etc. were handed over to the complainant. It is contended that the complainant did not produce the vehicle for regular service before the OP No.1, hence, the defects if any, occurred in the vehicle, was, due to negligence of the complainant. It is contended that a Local Commissioner was appointed by this Forum to inspect the vehicle and as per the report of the Local Commissioner, some minor defects were found, which were due to the negligent handling of the vehicle by the complainant. Hence, it is contended that there is no question of selling second hand vehicle to the complainant or its replacement by the OPs. Hence, it is denied that there is any deficiency in service on the part of the OPs.

    3. Thereafter, the parties led evidence by way of documents and affidavits in support of their respective rival 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 vehicle purchased by the complainant from the OPs, suffered certain defects during the currency of the warranty period, hence, the complainant has sought a direction that OPs be directed to rectify the defects or replace the old vehicle with a new one. Even though, the OPs do not deny the fact that the defects as may have developed in the vehicle, during the currency of the warranty period, as issued by it qua the vehicle purchased by him, from the OPs, yet, the OPs contends that the complainant having only once got the defect as had developed in the vehicle rectified from an authorized workshop of the OP under Annexure-B and had thereafter proceeded to rectify the defects at workshop other, than, the authorized workshops of the OPs, hence, the defects subsequent to the defects as were rectified in the vehicle under Annexure-B, are the result of mishandling of the vehicle, as also, concomitantly the amounts expended for rectifying the said defects, are not indemnify-able to him, by the OPs, as, the warranty does neither extend to nor does it legitimize the act of the complainant in getting the defects rectified from a workshop other than, the, workshop of the OPs.

    6. The above stand as canvassed in the reply of the OPs, has been supported by an affidavit. The complainant does not repudiate the fact as disclosed in the affidavit corroborating the contention on strength whereof exculpation of its liability is sought. The obvious conclusion which ensues from the above discussion, is, that the defects as had developed in the vehicle are hence, attributable to the mishandling of the vehicle, on the part of the mechanics, at, the unauthorized workshops of the OPs, therefore, the OPs, cannot be accordingly be directed either to rectify the defects or to replace the defective vehicle with a new one as prayed in the complaint.

    7. The safeguard of a warranty is extendable only in case the vehicle as, and, when, it develop defects during the currency of the warranty, is, brought for the rectification of such defects, before, the authorized workshops of the OPs, and the ineptitude of mechanics their having caused the defects. The above necessity of its being repaired at the authorized workshop of the OPs, is, to obviate mishandling by those mechanics whose ineptitude may aggravate or may cause a fault in the vehicle. As a consequence, for, such ineptitude, of, mechanics of, unauthorized workshops of the OPs, and their ineptitude having caused the defect, the warranty cannot be enforced against the OPs, hence, the complaint being without merit, is liable to be dismissed.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Basavaraju s/o. late Kariyanna,

    Aged about 50 years,

    Residing at Kadabettanahalli, Complainant

    Gubbi taluk, Chelur hobli,

    Tumkur district

    (By advocate Sri.Jayarangappa)



    AND



    1. Tata Motors Ltd,

    Tata Motors Finance,

    Bezzola complex,

    1st floor, V.N.Purv Marg,

    Chembur, Mumbai-400071 Opposite parties


    2. City cars, DMA TATA Finance Ltd,

    1st Floor, Byrappa complex,

    Opposite Stadium Circle,

    B.H.Road, Tumkur




    ORDER





    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to award compensation for the loss of vehicle at Rs.3,00,000/-; mental shock and agony at Rs.2,00,000/- and also a direction to return 20 blank cheques issued to 1st OP alongwith interest at 9% per annum together with costs and for such other reliefs.



    3. The facts given rise to institute the complaint may be summarized as thus:

    It is contended that, the complainant has entered into an agreement with the 1st OP to purchase a tempo goods vehicle from the TATA finance for personal use on loan basis vide agreement No.HPA No.CVH 937696 dated 17-4-2006. As per the terms of the agreement, the complainant has made a down payment of Rs.78,573/- to the 1st OP and agreed to pay Rs.11,550/- on 21-5-2006 and rest of the balance in monthly instalments at the rate of Rs.11,700/- for 47 months including the installment paid on 21-5-06. It is further contended that, after completion of all the formalities, the OP has delivered the possession of the vehicle bearing Rs.No.KA-06-A-8853 to the complainant. The complainant used for the vehicle for commercial purpose and use to earn. It is alleged that, out of the earning, the complainant used to repay the monthly installments as agreed to the 1st OP.


    It is further contended that, the complainant has paid a sum of Rs.93,600/- through post office S.B.A/c.No.541714 to the 1st OP and further paid Rs.1,33,020/- to the 2nd OP, who is authorised agent collect the premium amount from the complainant. The 2nd OP has issued receipts for the same. It is further contended that, the complainant has also made a down payment of Rs.78,573/- to the 1st OP as on the date of agreement. The 1st OP has issued the list of monthly installments to be paid on the date of agreement itself. The complainant has paid the premium amounts from the date of purchase of the vehicle i.e. 17-4-2006 till 17-11-2007 without any break or default.



    4. It is further contended that, on 15-1-2008 the 1st OP has issued a legal notice to the complainant stating that, the complainant has become a defaulter to the tune of Rs.57,506-50 including other charges. Before issue of the notice, the 1st OP has seized the vehicle on 19-11-2007 without any intimation or giving any seizure letter to the complainant which is opposed to law. The complainant being shocked by the seizure of the vehicle and the notice kept quite for some time. Later on 8-3-2008 the 1st OP has issued a legal notice to the complainant, calling upon the complainant to pay Rs.81,500/- towards dues of the vehicle. The complainant has issued a reply notice to the 1st OP to give details of the premium amounts due to him and other particulars of the statement of account, but the 1st OP has not replied so far.



    5. It is further contended that, on account of the illegal act of the 1st OP, the complainant has suffered financial loss, mental agony and also loss of earning from the vehicle. The complainant is not in a position to earn and lead his livelihood. Thus, the OP has committed deficiency in service to the complainant, eventhough the installments were paid as per the agreement. Till today, the OP has not informed about the position of the vehicle.



    6. It is further contended that, the complainant has paid a total amount of Rs.3,01,120/- out of the agreed installments amounting to Rs.5,49,750/-. It is alleged that, as on the date of seizure of the vehicle, he was not a defaulter.



    7. It is further contended that, the 1st OP has collected 20 blank cheques of the complainant bearing SB Account No.1529P-7 of State Bank of Mysore as security towards the payment of the installment amount. Till today those cheques have not been returned to the complainant. The cause of action for the complaint arose on 17-4-2007. Hence, this complaint.



    8. Among the OPs who have been notified of the complaint, the OPs No.1 to 2 put in their appearance through their counsel and resisted the same.



    9. The gist of the objections is as follows:

    In the objections filed by the 1st OP, it is alleged that, the complaint is not maintainable and it is liable to be dismissed as the complaint is not a “Consumer” as defined under Section 2(1) (d) of the Consumer Protection Act.



    10. It is further alleged that, the complaint is not maintainable either on facts or in the eye of law and it is liable to be dismissed, as the complainant has not come before this Hon’ble Forum with clean hands. He has presented a distorted and incorrect version of the facts before this forum, thereby, has an attempted to misguide and mislead the Hon’ble Forum.



    11. It is further alleged that, the complaint is not maintainable and it is liable to be dismissed as no cause of action has arisen in favour of the complainant.



    12. It is further alleged that, the complaint under reply is not maintainable and is liable to be dismissed as no prima facie case has been made out against the answering OP. It is evident that the complaint has filed the complaint with some oblique motives in an endeavor to force the answering OP to accept certain illegal demands of the complaint.



    13. It is further alleged that, the complaint does not qualify the ingredients of a valid complaint as envisaged in Section 2(c) of the Consumer protect Act, 1986, as such, the complaint is liable to be dismissed on this aground alone.



    14. However, without prejudice to the other preliminary objections and averments made, on merits of the case, it is submitted that the alleged transaction, which forms the subject matter of the complaint under reply, is thoroughly commercial in nature and as such does not fall within the scope, ambit and purview of the consumer protection Act and as such the same is liable to be rejected.



    15. This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that, the complainant availed a financial assistance from the answering OP by way of a loan of Rs.4,25,000/- vide a loan cum hypothecation agreement executed on 17-4-2006. The said loan was the payable on 47 installments at the rate of Rs.11,700/- per month except the first installment was payable at Rs.11,550/-. It is further contended that, as per the agreement, the complainant was liable to pay the installments in strict consonance with the repayment schedule and he has failed to adhere to the terms as to the repayment as laid down in the agreement and thereby has caused immense loss to the answering OP. It is further contended that, the complainant apart from payment of the future installments was liable to pay Rs.23,400/- as on 3-3-2009 besides overdue charges and delay payment charges



    16. It is further contended that, the complainant being a defaulter in the payment of installments was served with a notice dated 15-1-2008 to regularize the loan account in question. Since, the complainant has failed to respond to the notice, the OP Company was constrained to take possession of the vehicle on 31-5-2008. It is further contended that, evenafter the repossession of the vehicle when the complainant did not clear the outstanding dues, the OP company was left with no other option, but to sell the vehicle in order to cover the outstanding dues. It is further contended that, the sale proceeds have been duly adjusted towards the outstanding dues to be paid by the complainant. It is further contended that, as on date of the repossession of the vehicle, the complainant was liable to pay Rs.1,04,306-50 besides the overdue charges and delay payment charges apart from the future installments. The complainant has made false and frivolous averment in order to evade his liability to repay the loan. Accordingly, he prays for dismissal of the complaint with costs.



    17. The 2nd OP in his objections has contended that, the complaint is not maintainable either in law or on facts. This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that the head office of TATA finance Ltd is at Bangalore and the 2nd OP City Car is a DMA (Direct Market Associate) and controlled by the above said head office. The 2nd OP is acting only as an agent between the customer and above institution for providing loan facility. The 2nd OP have no power to collect installment amount or seizing the vehicle and this OP has not collected any installments amount in any manner from the complainant and they have no knowledge of payment made to the schedule vehicle. It is further contended that, when once the loan procedure is completed between customer and TATA finance Ltd, the part of work of 2nd OP will be automatically closed and is in no way concerned for any future transaction. Under above circumstances, the 2nd OP is no way concerned about the alleged seizure of the vehicle because, they are not seizing authority. It is further contended that, the TATA finance Ltd, i.e. 1st OP can only seize the vehicle.. Accordingly, he prays for dismissal of the complaint with heavy costs.



    18. In support of the case, the complainant and the OPs have filed their affidavits. The complainant has also pressed in to service relevant documents. The 1st OP has filed written arguments. We have heard the learned counsels appearing for the parties. We have also examined the materials available on record.



    19. The questions that arise for our considerations are:

    1. Is the complaint maintainable?

    2. Is there is any deficiency of service by the OPs?

    3. Is the complainant entitled for the relief as prayed for?



    20. Our findings on the above questions are here under:

    Point No.1: Not maintainable

    Point No.2: Does not arise for consideration

    Point No.3: As per order



    REASONS



    21. The bone of contention raised by the OPs in contesting the case is that, the complainant is not a consumer and the dispute does not fall within the meaning of the consumer’s dispute. Therefore, let us proceed to examine the merits of such contention. The term “consumer” is defined under Section 2 (i) (d) of the CP Act. It reads as thus:

    “(d) “consumer” means any person who –

    (i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; of

    (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such series other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payments, when such services are availed of which the approval of the first-mentioned person [but does not include a person wo avails of such services for any commercial purpose];

    [Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment;]”.



    22. A clear reading of the said provision makes it clear that, if any goods for consideration or any services availed for a consideration solely for commercial purpose such dispute does not fall within the meaning of the term consumer. However, there is an explanation added to section 2 (i) (d) (ii). Therefore, from the explanation it is clear, if a person buys, uses the services availed by him exclusively for the purpose of earning his livelihood by means of self employment does not fall within the ambit of commercial purpose. From the complaint averments more particularly at para-2 it is stated as thus:

    “After all the formalities the opposite party has delivered the possession of the vehicle to the complainant vide bearing Reg.No.KA-06-A-8853. From the date of possession of the vehicle the complainant used the vehicle for commercial purpose and used to earn. Out of the earning the complainant used to repay the monthly installment amounts as agreed above to the opposite party No.1”.



    23. Nowhere, he pleaded that, the vehicle in question was though used for commercial purpose, it was mainly for the purpose of earning his livelihood by means of self employment. In the absence of such basic allegations, we are of the opinion that, the complaint filed by the complaint does not fall within the meaning of the “consumer” as defined under the Act. Therefore, we hold that, the complaint is not sustainable.



    24. In view of our finding on point No.1, we feel there is no need to go into the merits of the case. Accordingly, we proceed to pass the following:



    ORDER



    The complaint is dismissed but without costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Omeesh Sharma s/o Late Parmeshwari Dass, resident of Vill. Tohlu, P.O. Bhater, Tehsil Mukerian, Distt.Hoshiarpur.


    ... Complainant

    versus


    1.

    Libra Automobile Limited, through its Manager, Singriwala, Jalandhar Road, Hoshiarpur (Authorised dealer for Tata vehicles and spare parts).
    2.

    Regional Manager North Tata Motors Limited, Regional Office, Jiwan Tara 5, Parliament Street, New Delhi-110001.
    3.

    Tata Motors Limited, 26th Floor, Centre No. 1, World Trade Centre, Cuffee Parade, Membai-400 005.
    4.

    Tata Motors Pvt. Limited, Jamshedpur-831010 (Jharkhand) through its General Manager.

    ........... Opposite Parties





    1.

    The complainant namely Omeesh Sharma has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the care arre that the father of the complainant, Late Parmeshwari Dass purchased one Tata Ace Pick Up bearing Chasis No. 445111ARZV01274, engine No. 275IDI05ARZS00568 from OP No. 1- Libra Automobile Limited on 23.5.2008 for Rs. 2,69,401/- vide Invoice No. 204 dated 23.5.2008. The said vehicle is being used by the complainant to earn his livelihood by way of self-employment.
    2.

    It is the case of the complainant that the said vehicle is under warranty for a period of one year from the date of sale of vehicle or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem. The vehicle suffers from some inherent manufacturing defect. The the vehicle consumes excessive engine oil. The said fact was brought to the knowledge of OP No. 1. The OP No. 1 carried out the minor repairs, but the same did not work and ultimately, the engine of the said vehicle was overhauled on 23.10.2008.
    3.

    It is further the allegation of the complainant that even after overhauling of engine, the said vehicle did not work properly and is constantly consuming excessive engine oil. The complainant again brought this fact to the knowledge of OP No. 1. The engine of the vehicle was again overhauled on 25.2.2009.
    4.

    It is further the allegation of the complainant that after overhauling the engine of the vehicle, it did not work properly and is consuming excessive engine oil, as such it is suffering from some inherent manufacturing defect. The complainant made a request to OP No. 1 to replace the said vehicle, but of no consequences, hence this complaint.
    5.

    The opposite party No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, suppression of material facts, jurisdiction, and the complainant is not a consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased the said vehicle for commercial purpose from the replying OP and is being used for the purpose of earning profits and not to earn livelihood by way of self-employment. The warranty terms were limited and subject to availing of service after regular coverage.


    However, it is admitted that initial period of warranty is 12 months or 36000 kms, whichever is earlier. The OP No. 4 extended warranty to replace the defective parts, in case the parts are not working properly and any part subject to mis-use, accident, repaired/replaced by the outside etc., was not subject to the warranty terms. The replying OP is selling the vehicle as supplied by the manufacturer. The replying OP has sold the vehicle in the same condition as it was received from the manufacturer i.e. M/s. Tata Motors Limited. Thus, OP No. 1 – authorized dealer is not liable for the alleged manufacturing defects in the vehicle.
    6.

    It is further replied that the vehicle is not creating any kind of problem nor is suffering from any manufacturing defect. It is further replied that diesel engine consumes more oil, whereas, petrol engine consumes less oil due to technical reasons. It is further replied that on 23.10.2008, the vehicle was brought to the workshop of the replying OP for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled. The vehicle was working properly and the consumption was also normal. However, it is admitted that on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. First service was due after coverage of 5000 kms. The complainant was not experiencing any problem in the vehicle, so the vehicle was not brought for availing the first free service in time. The complainant was advised to maintain the vehicle as per recommendations of the manufacturer.


    That during road test of the vehicle, the consumption of the oil in vehicle was found normal and satisfactory. The engine was not suffering from any problem nor was overhauled, as alleged by the complainant. The complainant has concocted a false story to get the replacement of the vehicle. The vehicle in question complies with the warranties, assurances and specifications provided for it by the manufacturer regarding quality and performance of the vehicle. The services of the vehicle were never carried out as per terms and conditions of the warranty policy, whereas, the warranty issued by the manufacturer is subject to such terms and conditions.
    7.

    The opposite parties No. 2 to 4 filed the joint reply. The preliminary objections vis-a-vis maintainability, locus-standi, suppression of material facts, the complainant is not a consumer, relationship between the opposite parties and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the warranty benefits are limited to just exceptions and cannot be availed as a matter of right. It is denied that since the day of purchase, the vehicle is creating problem, as the same is suffering from inherent manufacturing defect and consumes much engine oil.
    8.

    It is further replied that the complainant brought the vehicle in question at the workshop of OP No. 1 on 20.10.08 with the problem of 'Engine Noisy'. The vehicle was duly inspected by the expert engineers of OP No. 1 and the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The complainant took the delivery of the vehicle on 23.10.08. It is also denied that even after overhauling of the engine, the vehicle did not work properly and was constantly consuming more engine oil. It is submitted that there was no overhauling of engine done by OP No. 1. It is also denied that the engine of the vehicle was overhauled on 25.2.2009.


    The complainant has reported at the workshop of OP No. 1 on 17.2.2009, after the vehicle had covered a distance of 10456 KM for availing the 1st Free Service. The complainant also reported the problem of 'high engine oil consumption'. The vehicle was duly inspected by the official of OP No. 1 and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty, besides, other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction. The complainant is making bald and baseless allegations. It is denied that the vehicle was suffering from inherent manufacturing defect. The engine of the vehicle was never overhauled at any point as alleged by the complainant and only minor defects relating to the engine were replaced.
    9.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, supplementary affidavit – Ex. C-2, death certificate of Parmeshwari Dass – Ex. C-3, Legal Heir Certificate – Ex. C-4, bill dated 23.5.2008 – Mark C-5, copy of the RC – Mark C-6, copy of Service Report – Mark C-7, Tax Invoice – Mark C-8 (six sheets), legal notice dated 23.4.2009 – Ex. C-9, AC Ex. C-10, penalty condition – Ex. C-11 (3 sheets) and closed the evidence.
    10.

    In rebuttal, the opposite parties tendered in evidence affidavit of Dheeraj Sethi – Ex. OP-1, affidavit of MS Pardeep – Ex. OP-2, Tax Invoice – Mark OP-3 (two sheets), satisfaction note – Mark OP-4 and closed the evidence on behalf of the opposite parties.
    11.

    The learned counsel for the parties have filed written arguments. WE have gone through the written submissions and record of the file minutely.
    12.

    The grouse of the complainant is that the father of the complainant purchased one Tata Ace Pick Up from OP No. 1 on 23.5.2008. That the said vehicle is under warranty for a period of one year from the date of sale or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem, as such it suffers from some inherent manufacturing defect. The vehicle consumes excessive engine oil.


    The OP No. 1 carried out minor repairs, but the same did not work and ultimately, the engine of the vehicle was overhauled on 23.10.2008, and thereafter also the vehicle did not work properly and is constantly consuming excessive engine oil. It is further the allegation of the complainant that the engine of the vehicle was again overhauled on 25.2.2009, but thereafter it did not work properly and is consuming excessive engine oil. The vehicle is suffering from some inherent manufacturing defect. The OP No. 1 has admitted that the initial period of warranty is 12 months or 36000 kms, whichever is earlier. The warranty is extended to replace the defective parts, and any part subject to misuse, accident, etc., was not subject to the warranty terms.


    The OP NO. 1 has raised the plea that the vehicle is not creating any kindly of problem nor is suffering from any manufacturing defect. That the vehicle was brought to the workshop on 23.10.2008 for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled, as the vehicle was working properly and the consumption of engine oil was also normal. That on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. There was no defect in the vehicle.
    13.

    The opposite parties No. 2 and 4 had raised the plea that the vehicle was duly inspected by the expert engineers of OP No. 1 and, thereafter, the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The opposite parties No. 2 to 4 had also raised the plea that the complainant reported the problem of 'high engine oil consumption' and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty,besides, the other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction.
    14.

    Now, the point for consideration is whether the vehicle in question suffers from manufacturing defect? The answer to this is in the negative.
    15.

    Admittedly, the complainant has not examined any expert to prove the manufacturing defect in the vehicle in question.
    16.

    It is a settled proposition of law that where there is no expert evidence to prove that the vehicle got any defect and only minor repairs were carried out and in the absence of any record with regard to inherent or latent defect it is not possible to hold that the vehicle is suffering from manufacturing defect. Reliance placed on 2009(1) CLT 618, Vikram Bajaj versus Hind Motors (India) Ltd., and another.
    17.

    The law is also settled that if there is manufacturing defect, then expert opinion should be given. Where petty repairs had been carried out, it does not prove that there was manufacturing defect. Under the circumstances, if only minor repairs are carried out and it has not been proved on record that there is any inherent or latent defect in the engine and expert evidence is not brought on record, the only possible conclusion is that the vehicle does not suffer from any manufacturing defect. Reliance placed on 2009(2) CLT 670 (NC).
    18.

    The complainant has claimed that the vehicle in question was overhauled twice by OP No. 1, but to prove the said plea the complainant has not produced any evidence, therefore, it is not proved on record that the vehicle of the complainant was overhauled by the opposite party No. 1. The matter does not rest here. The opposite parties have produced on record the Satisfaction Note – Ex. OP-4 dated 25.2.2009 and its careful scrutiny makes it clear that the complainant has received the vehicle in good condition and to his satisfaction. Since the complainant had received the vehicle in good condition to his satisfaction, therefore, the present complaint filed on 22.5.2009 with regard to inherent defect in the vehicle is not maintainable.
    19.

    As a result of the above discussion, it is held that the complainant has failed to prove any deficiency in service on the part of the opposite parties, with the result the complaint is ordered to be dismissed. No order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    K Geetha, 9/8, Thaivalappil house, Azheekode south post, Kannur.

    2. TATA Motor Finance, Opp. Ramananda Oil Mills, South Bazarm, Kannur -2.
    ...........Appellant(s)

    Vs.

    1. TATA Motors Finance Ltd., 4th Floor, DGP huse, Old Prabhadevi Road, Prabhadevi, Mumbai-400025.
    ...........Respondent(s)




    O R D E R




    This is a complaint filed under section 12 of the consumer protection act for an order directing the opposite parties to issue Hire Purchase termination letter and to refund Rs.2300/- together with Rs.20,000/- as damages and Rs.2000/- as cost of this proceedings.

    The case of the complainant is that the complainant had availed a hire purchase loan of Rs.3 lakhs from the opposite party for the purchase of a motor vehicle bearing No.KL.13G.5978. Further the complainant has to pay Rs.32, 000/- towards insurance for the vehicle for two years and Rs.76, 500/- as finance charge to the 1st opposite party.


    As such the complainant has to pay a total amount of Rs.4, 08,500/- to the 1st opposite party. Towards the repayment of the said amount, the complainant handed over 35 post dated blank cheques to the 1st opposite party. The 1st opposite party encashed the cheques on respective due dates which started from 9.8.04 and ended on5.6.07. All the cheques were honored except three cheques. But the amount due on the bounced chques with penal charges and bouncing charges were duly paid by the complainant to the 1st opposite party. It was agreed between the complainant and 1st opposite party that as soon as the loan amount is paid as per schedule the Hire Purchase termination letter to cancel the endorsement in the RC book of the vehicle would be issued by the 1st opposite party to the complainant.


    But even after the receipt of the entire loan amount, the 1st opposite party sent a notice dt.24.1.08 to the complainant demanding to pay a further amount of rs.2240/-. The complainant further submitted that though she was not liable to pay the said amount. In order to avoid a dispute she paid an amount of Rs.2300/- on 4.2.08 to the 1st opposite party as per receipt No.304913030. Even after that the 1st opposite party sent further letters to the complainant demanding various amounts claiming it as due. The complainant submitted that she is not liable to pay any such amount and the 1st opposite party has duty bound to issue the Hire purchase termination letters and to return back the remaining cheques with them.


    Even though the complainant had deposited sufficient amount in the bank account to honour the cheques monthly, the opposite party used to present single cheque for the amount due on two or three months together. Hence even after payment of the entire loan amount some cheques are still in the custody of the opposite party as unused. The act of non-issuance of Hire Purchase termination letters to the complainant is deficiency of service on the part of 1st opposite party. Due to the callous and negligent act of 1st opposite party the complainant suffered great mental agony. The complainant claims an amount of Rs.20, 000/- as damages, cost and compensation.

    On getting the complaint notices issued to opposite parties but they have-not cared to appear or to file version. Subsequently both of them were called absent and set exparte.

    On the above pleadings the following issues were raised for consideration.

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

    2. Whether the opposite parties are liable to issue Hire Purchase termination letter of the vehicle having Reg.No.KL.13G.5978 to the complainant?

    3. Whether the complainant is entitled to refund Rs.2300/- which she had paid on

    4.2.08 as per receipt No.304913030 to the 1st opposite party?

    4. Whether the complainant is entitled to get any damage as alleged, If so what is

    the quantum?

    The evidence consists of the chief affidavit filed by complaint and Exts.A1 to A6.

    Issue Nos. 1 and 2

    The complainant filed chief affidavit in tune with the complaint. It is her case that she is liable to pay Rs.4, 08,500/- under the hire purchase agreement. Towards the repayment of the said amount in monthly installments 35 signed blank cheques were issued by the complainant to 1st opposite party. The period of loan was over on 5.6.07. Except 3 cheques all other cheques were duly honoured. The amount covered by the dishonored cheque together with the penal charge and bouncing charge was also duly paid by the complainant.

    Since the complainant had remitted all the installments of the loan amount, it is the duty of the 1st opposite party to issue the Hire purchase termination letter to the complainant for canceling the endorsement made in the RC book of the complainant’s vehicle. Complainant alleges that for the issuance of the Hire purchase termination letter opposite party further demanded Rs.2240/- by the letter dt.24.1.08. The complainant submitted that in order to avoid a dispute she paid an amount of Rs. 2300/- on 4.2.08. Ext.A4 receipt proves that complainant has remitted the amount. But complainant alleges that even after payment of the amount as per Ext.A4 the 1st opposite party demanded further amount for issuing Hire purchase termination letter.

    It is clear from Ext.A3 notice issued by1st opposite party to the complainant, they are demanding Rs.2, 214/- as the balance due till 31.1.08. It is also seen mentioned in the notice that the complainant has to pay the expenses, additional finance charges and for closure charges to the 1st opposite party. But no amount was seen calculated towards the same. After payment of the amount covered byExt.A4 receipts the complainant issued Ext.A5 lawyer notice to the opposite parties demanding to issue the H.P termination letter. The said notice is seen received by the 2nd opposite party on 16.10.08 by Ext.A6. But the opposite parties not even cared to send a reply for the same. The Hire purchase termination letter is also not issued to the complainant.

    In the light of the available evidence on record it can be seen that the complainant has paid entire amount liable to pay. But opposite party did not issue the termination letter. Opposite parties are liable to issue Hire purchase termination letter Hence there is deficiency of service on the part of opposite parties. The issue No.1 and 2 found in favour of complainant.

    Issue No.3

    Complainant submitted that she had remitted Rs.2300/- as per Ext.A4 receipt in order to avoid a dispute. It is seen that the complainant remit the said amount without any objection and in tune with the Ext.A3 lawyer notice issued by 1st opposite party. Complainant has not adduced evidence to prove that the amount in ext.A4 is over and above the liability. Hence it is difficult to direct 1`st opposite party to refund the said amount. Issue No.3 is found against complainant.

    IssueNo.4

    The complainant has not adduced evidence to show what all damages she has suffered due to non issuance of Hire purchase termination letter. It is understandable that in the usual course there is some difficulty and mental agony under such circumstances. In consideration of the practical difficulties and mental agony that the complainant has suffered we are of opinion that complainant is entitled to get a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Thus issue No.4 is found in favour of the complainant.

    In the result, the complaint is allowed directing the1st opposite party to issue the Hire purchase termination letter of the vehicle bearing Reg. No.KL.13.59768 and to pay Rs.5000/-(Rupees five thousand only) as compensation together with Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is allowed to execute the order against the opposite parties under the provisions of consumer protection Act.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Daljit Kumar son of Sh. Roop Lal resident of Ward No. 10, Tanda Urmar, Tehsil Dasuya, District Hoshiarpur.

    ..... Complainant

    versus


    1.

    Tata Motors Finance Ltd., Branch Office at Chandigarh Road, near Mini Secretariat, Hoshiarpur, now the office shifted to Nirmal Complex Jalandhar, Through its Manager.
    2.

    Tata Motor Finance Ltd., C/o DG/P, House Fourth Floor, Old Prabhadevi Road, Mumbai, through its Manager.
    3.

    M/s. Libra Automobiles Ltd., Village Singriwala, Tehsil and District Hoshiarpur, through its Manager.

    .......... Opposite Parties








    1.

    The complainant namely Daljit Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant purchased a Tata ACE – Car bearing registration No. PB07-T-7583 from Libra Automobiles – OP No. 3 in the month of December, 2007 to earn his livelihood by way of self-employment. The OP No. 3 issued Invoice dated 7.12.2007 amounting to Rs. 2,53,738/-.
    2.

    It is the case of the complainant that he made the payment of Rs. 33,500/- in advance (Rs.10,000/- on 12.11.2007, Rs. 25,000/- on 7.12.2007 and Rs. 9500/- on 18.12.2007). That OP No. 3 disclosed that there is an offer by the makers that if the car is purchased in the month of December, 2007, then the discount of Rs. 8000/- is available, as such the payable amount comes to Rs. 2,01,238/-. It is averred that the agent of OPs No. 1 and 2, who was present in the office of OP NO. 3, offered 9% interest reducing rate on finance amount. Thus, the complainant agreed to finance the vehicle from OP No. 1 for Rs. 2,01,000/-.
    3.

    It is the allegation of the complainant that OP NO. 1 got signatures of the complainant on blank papers with the understanding that the agreement would be scribed later on, as per terms and conditions settled between the parties. The OP No. 1 made the payment of Rs. 2,01,000/- to OP No. 3 – Libra Automobiles Ltd. That the complainant is paying the instalments of loan amount to OP No. 1 regularly.
    4.

    It is the grouse of the complainant that in the month of December, 2008, when he went to the office of OP No. 1 to deposit the instalment, the officials of the opposite party asked him to deposit additional amount of Rs. 18,000/-. That the Manager of OP No. 1 also raised the threat that if the amount of Rs. 18,000/- is not deposited, in that eventuality, the possession of the vehicle will be taken. However, the complainant deposited the amount of Rs. 8000/- in the month of December, 2008.
    5.

    It is further the allegation of the complainant that he visited OP No. 1 with the request to supply the Statement of Loan Account, but all in vain, thus the complainant served a legal notice upon OP No. 1. It is further the allegation of the complainant that he never took the loan of Rs. 2,27,000/- from OPs No. 1 to 3. The opposite parties are charging higher rate of interest on the amount of Rs. 2,27,000/-. The opposite parties raised the threat that they will take the possession of the vehicle and, thereafter, it will be sold to some other person, hence this complaint.
    6.

    The opposite parties no. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, the complainant is not a consumer and concealment of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant was not regular in paying the loan amount in instalments. It is denied that the signatures of the complainant were obtained on blank papers. The complainant had committed breach of the terms and conditions of the agreement by making a default in payment of the loan amount in instalments, as agreed between the parties. That the complainant executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and thereafter, obtained finance.


    The complainant has to pay the loan instalments in time and in case of default, the answering opposite parties had the right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan amount, per terms and conditions of the agreement dated 7.12.2007.

    7.

    It is further replied that the vehicle was taken for commercial purpose and was being used for business purposes. It is provided under the agreement that all disputes arising under the said agreement are to be referred to the sole arbitration of an Arbitrator to be nominated by Tata Motors Finance Limited. The agreement also provides that the Courts at Mumbai alone shall have jurisdiction in respect of any matter arising out of the Agreement. The case of the complainant pertains to accounts, thus it will not fall within the purview of the Consumer Court. The complainant after executing the Loan Agreement agreed to pay the instalment every month. The complainant made a default in the payment of the loan instalment with a view to cheat the replying opposite parties. The complainant had availed the loan of Rs. 2,27,000/-.
    8.

    It is further replied that the vehicle in question was financed by the replying opposite parties and the invoice amounting to Rs. 2,53,748/- was issued. Out of the amount of Rs.2,53,748/- , the complainant paid Rs. 26,748/- towards margin money. The complainant issued cheques bearing No. 33687 dated 11.7.2008, bearing No. 33688 dated 11.8.2008, bearing No. 33689 dated 11.9.2008, bearing No. 33690 dated 11.10.2008, but the complainant failed to ensure sufficient funds to clear the said cheques.
    9.

    The OP NO. 3 filed a separate reply. The preliminary objections vis-a-vis maintainability and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased Tata Ace Vehicle on 7.12.2007 for Rs. 253748/- and not for Rs. 253738/-. It is replied that the margin money is Rs. 44,500/- and not Rs. 33,500/-, as alleged by the complainant. The detail of the amount charged for the purchase of the vehicle in question had been given vide para No. 2 of the reply.


    It is denied that the price of the vehicle comes down to Rs. 2,09,238/- after deduction of margin money. It is also denied that after discount of Rs. 8000/-, the price of the vehicle comes to Rs. 2,01,238/-, as alleged by the complainant. It is also denied that the amount of Rs. 2,01,000/- was got financed by the complainant. It is also denied that the agreed rate of interest was 9%. It is also denied that the OP No. 1 gave Rs. 2,01,000/- as finance amount to the replying OP. It is further replied that the demand of Rs. 18000/- was never raised, as alleged by the complainant.
    10.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, receipts dated 7.12.2007 – Mark C-2, dated 12.11.07 – Mark C-3, dated 7.12.07 – Mark C-4, dated 18.12.2007 – Mark C-5, dated 12.11.07 – Mark C-6, dated 27.1.2009 – Mark C-7, dated 12.1.2007 – Mark C-8, dated 31.12.2008 – Mark C-9, dated 20.12.2008 – Mark C-10, postal receipts – Mark C-11, notice dated 29.1.2009 – Mark C-12, and closed the evidence.
    11.

    In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Mr. Johnson Andrews – Ex. OP-1, whereas, the opposite party No. 3 tendered in evidence affidavit of Dheeraj Sethi – Ex. R-1 and closed the evidence on behalf of the opposite parties.
    12.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    13.

    The learned counsel for the complainant made a reference to Para No. 1 of the reply, on merits, filed by OP No. 3 – M/s. Libra Automobiles Ltd., wherein it is stated that the cost of the vehicle is Rs. 2,53,748/- + Rs. 11,815/- (insurance premium) + Rs. 12,437/- (expenses for RC and file charges etc.) and in this way, the total amount comes to Rs. 2,78,000/-. The detail of the finance amount received has also been given. The Tata Company has financed the vehicle for Rs. 2,27,000/- minus Rs. 1,500/- = Rs. 2,25,500/-. That vide para No. 2 of the reply, it is submitted that the complainant had paid the margin money of Rs. 44,500/-. The complainant was entitled for the cash discount of Rs. 8,000/-.
    14.

    Now, it is clear that the complainant has paid Rs. 44,500/- as margin money and the cash discount of Rs. 8,000/- has also been allowed, therefore, the amount of Rs. 44,500/- + Rs. 8,000/- = Rs. 52,500/-, is required to be deducted from the cost of the vehicle i.e. Rs. 2,53,748/- minus Rs. 52,500/- = Rs. 2,01,248/-. Thus, the complainant is liable to pay Rs. 2,01,248/- to opposite parties No. 1 and 2 along with other charges as agreed between the parties. Admittedly, the opposite parties No. 1 and 2 had financed the vehicle for Rs. 2,27,000/-. The opposite parties No. 1 and 2 had also not explained with regard to the deduction of Rs. 1,500/- made from the finance amount of Rs. 2,27,000/- .
    15.

    The learned counsel for opposite parties No. 1 and 2 raised the arguments that the complainant had executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and obtained finance from Tata Motors Limited, as such, the complainant and opposite parties No. 1 and 2 are bound by the terms of the agreement. The complainant had agreed to pay the loan instalments in time and in case of default, the opposite parties No. 1 and 2 had every right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan given to the complainant. The complainant after executing the loan agreement agreed to pay the instalments every month. The complainant made a default in the payment of the instalments . The complainant obtained loan from opposite parties No. 1 and 2 with the promise to repay with interest in 4 years in 47 monthly instalments in the sum of Rs. 7,409/-.
    16.

    As a result of the above discussion, the complaint of the complainant is accepted and opposite parties No. 1 and 2 are directed to rectify the loan account and loan installments within the frame work of the agreement executed with the complainant i.e. as per terms and conditions of the said agreement. Further , the OPs No.1 and 2 are directed to supply the information with regard to loan account of the complainant. Further, the OP No.1 and 2 are restrained from taking the possession of vehicle No. PB07-T-7583 except in due course of law. Litigation expenses are assessed at Rs.1000/- to be paid by OP No.1,2 to the complainant within one month from the receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    1. Jasbir Kaur wd/o Surjit Singh son of Sh. Malook Singh, resident of V. Noorpur Hakima, Tehsil & Distt. Moga.



    2. Karamjeet Singh.



    3. Navjeet Singh.



    4. Jagjeet Singh, minor son of Sh. Surjit Singh.



    5. Sarabjit Kaur minor D/o Surjit Singh



    Complainants no.3 to 5 minors, through their mother Smt. Jasbir Kaur, who is natural guardian of the minors and has no adverse interest against the minors.

    (Complainants)

    Vs.



    1. Balwant Sales Ltd. near Jalandhar Octroi Post, G.T. Road West, Ludhiana through its Managing Director/ Manager.

    2. Tata Motors Ltd. Tata Motor Finance, Regd. Office Bombay House, 24 Homi Mody Street, Mumbai-400001 through its Managing Director/Manager.

    (Opposite parties)




    O R D E R




    1- Sh. Surjit Singh predecessor-in-interest of the complainants purchased vehicle (PB-29E-9593) from opposite party no.1, after getting it financed from opposite party no.2. Loan-cum-hypothecation agreement dated 14.4.2005 was entered between Sh. Surjit Singh and opposite party no.2. Sh. Surjit Singh thereafter had been paying loan amount in installments to opposite party.


    He died on 28.3.2006. Since his death, complainant no.1 being widow has been making payment of loan amount to opposite party. In first week of August, 2007, opposite party no.1 required complainant to bring the vehicle to workshop, for proposes of service and inspection. Consequently, on 14.8.2007, complainant no.1 and her brother-in-law Sh. Rajinder Jeet Singh took vehicle to workshop of opposite party no.1, who then seized the vehicle, on averments that it would be released after clearing the whole balance of the loan amount. Thereafter, complainant had deposited huge amount with opposite party and made last payment of Rs.23,550/- on 31.12.2007. On that day, opposite party no.1 had made clear that a sum of Rs.23,550/- was due as balance to the loan amount and on payment thereof, vehicle would be released.


    Then in first week of January, 2008, complainant no.1 went to office of opposite party no.1 with Rs.23,550/- and requested to accept the same and release the vehicle. But opposite party no.1 still claimed that another sum of Rs.47,343.94 was due from complainant no.1, on account of O.D. charges, which she objected being illegally raised demand by opposite party no.1. Thereafter many times, offered balance loan amount of Rs.23,550/-, but opposite party no.1 remained adamant to charge illegal amount of Rs.47,343.94 as O.D. charges, along with balance amount of Rs.23,550/-. At that time, opposite party no.1 also issued her detailed account statement dated 13.3.2007. On checking, it was found that the statement was incorrect, as certain amounts deposited by her, were not reflected in her account statement.


    Her request to overhaul the account properly was not conceded and intimated them that was ready to deposit actual due balance, as full and final payment and that won’t pay illegal amount of Rs.47,343.94 claimed as O.D. charges. Since 14.8.2007, opposite party illegally detained vehicle of the complainants, due to which caused loss of Rs.30,000/- per month to them. For such deficiency in services on part of the opposite party, instituted this complaint u/s 12 of the Consumer Protection Act, 1986, to overhaul loan account correctly and release the vehicle, on deposit of actual due balance and pay her compensation of Rs.1 lac along with economical loss of Rs.30,000/- p.m. since 14.8.2007 till release of the vehicle.

    2- Opposite party no.1 in reply claimed that complaint is not maintainable, complainant has no locus standi to file the complaint. There was no privity of contract between them and the complainant. The vehicle was given to Sh. Surjit Singh under loan agreement on 14.4.2004. Complainants have got no right to sue on behalf of Sh. Surjit Singh, as they are not his LRs.


    Further averred that Sh. Surjit Singh, who had purchased the vehicle under loan agreement, committed default in repayment of the loan. Paying loan installments by complainant no.1 being widow of Sh. Surjit Singh, is also denied. Sh. Surjit Singh had deposited loan installments of Rs.23,550/- upto 19.1.2006. Still there was a default of Rs.54,578/- towards installments on that day. Till 31.5.2006, no installment was paid. By end of March, 2006, there was a default of Rs.97,428/- towards installments. Opposite party no.1 deposited Rs.1 lac by cheque no.970310 dated 30.3.2006 on 31.3.2006, to clear the default under liability clause. Thereafter, installments were not deposited regularly by the borrower or any of his representatives. Loan installment of Rs.23,550/- was deposited on 23.6.2007. After that, no installment was paid or deposited on behalf of the borrower.


    Also denied that opposite party no.1 brought vehicle to their workshop in August, 2007. Rather, Sh. Malook Singh father of borrower Sh. Surjit Singh, had surrendered vehicle on 15.8.2007 with the replying opposite party, with the assurance to take it back after paying the loan amount. After 23.6.2007, a sum of Rs.23,550/- was deposited by Sh. Malook Singh father of the borrower. Thereafter, no installment was deposited. Also disputed and denied that complainant no.1 approached opposite party, with balance amount of Rs.23,550/-, but they illegally demanded Rs.47,343.94 as O.D. charges. Loan installments received by them were remitted to opposite party no.2. As such, there is no deficiency in service on their part. Nor complainant suffered any financial loss due to their act.

    3- Opposite party no.2 did not contest the complaint and is being proceeded exparte.

    4- Complainant and opposite party no.1 adduced evidence in support of their respective claims.

    5- We have heard ld. counsel for parties and perused the record.

    6- Admitted aspects are that Sh. Surjit Singh had taken loan of Rs.8.50 lacs from opposite party no.1, for purchase of a vehicle, which he ultimately purchased from opposite party no.1 vide invoice Ex.C2 for Rs.9,27,771/-. Loan-cum-hypothecation agreement (Ex.C4) was entered between the parties. The loan was repayable in 47 monthly equated installments of Rs.23,550/- each, except first installment of Rs.25,700/-. After such purchase, vehicle was registered in the name of Sh. Surjit Singh, as reflected vide RC Ex.C5.

    7- It is in aforesaid scenario claim of the complainants that borrower Sh. Surjit Singh died on 28.3.2006 and till death, had been regularly paying installments. After his death, installments were also paid by complainant no.1 being widow of the borrower. She defaulted in making payment of few installments. So, on 14.8.2007, the vehicle was seized by opposite party no.1, when it was taken to the workshop for service purposes. At this stage, we may venture to say that we do not want to enter into any discussion whether the vehicle was repossessed by opposite party no.1 forcibly or complainant no.1 of her own surrendered the vehicle. Because it is not allegations of the complainant that opposite party no.1 used musclemen or henchmen and by force, took possession of the vehicle. On the date 14.8.2007, when vehicle was repossessed by opposite party no.1, the borrower owed on account of loan, a sum of Rs.81,428/- as reflected in loan account statement Ex.C6 (Ex.R3) of Tata Motors, opposite party no.2.


    However, it is not alleged by complainant, nor disputed by contesting opposite party no.1 that vehicle was seized by opposite party no.2. Rather case is that it was taken by opposite party no.1 which they have admitted, by claiming that father of the borrower himself surrendered the vehicle and promised to take it back after paying balance loan amount. Therefore, we have no doubt in mind that vehicle was repossessed by opposite party no.1, due to failure to pay installments in time as agreed.

    8- During the course of arguments, ld. counsel for opposite party no.1 argued that they never seized or took possession of the vehicle, as finance was provided by opposite party no.2, so vehicle is possessed by them and is not in their possession. But such contention being inconsistent and contrary to pleaded case of opposite party no.1, deserves outright rejection. So, we have no hesitation to conclude that the vehicle is in possession of opposite party no.1, as they have not pleaded that after taking possession of the vehicle, its possession was handed over by them to opposite party no.2, who had financed the same.

    9- Now we would advert to main plea that only a sum of Rs.23,550/-was due against loan account, which complainant no.1 offered, requesting for release of the vehicle, but declined by opposite party no.1. On behalf of opposite party no.1, it was argued that narration of the complainant is totally incorrect, as much more amount was due, when vehicle was surrendered to opposite party no.1 and on account of their failure to clear the loan amount, possession of the vehicle could not have been redelivered to the complainants. Also argued that complainants being legal representatives of the borrowers, have no right to file this complaint and consequently, the same deserves dismissal.

    10- In support of the contention that legal representatives of the deceased are not consumers and can not maintain a complaint under Consumer Protection Act, 1986, reliance was placed on case reported as Mrs. Hemalatha Saptharishi & Ors. Vs Indian Oil Corporation Ltd. & Ors. 1999(1) CPR-392(Tamil Nadu State Commission). No doubt in that case, it was held that legal representatives of a consumer are not consumers, so can not maintain a complaint under Consumer Protection Act, 1986. But facts of that case were distinct, as one M. Saptharishi was a registered consumer of LPG cylinder. While igniting LPG gas, there was a mishap causing injuries to M. Saptharishi, who consequently succumbed thereto. Damages claim was filed by his LRs. It as in such circumstances that LRs were not held legal representatives of the deceased.


    Whereas, facts of this care are distinct. Herein, borrower was predecessor-in-interest of the complainants and after his death, complainants have been honouring loan installments, by depositing the same which were accepted by opposite party no.1. Complainants being legal heirs of owner of the truck, also succeeded to the property in the truck. Therefore, on account of seizure of the truck, their right was affected. Hence, they have to be construed and taken as consumers. Because opposite party no.1 also conceded them to be consumer, by receiving few loan installments from complainant no.1 and by issuing receipts and installments in her name after death of the borrower. Therefore, we find in these circumstances, no merit in plea of the opposite party no.1 that complainants are not the consumers, not entitled to file the present complaint.

    11- Qua merit, we may say that regarding relief sought, we have to refer ourselves to account statement Ex.C6 (Ex.R3) of the loan account. On the day of seizure of the vehicle on 14.8.2007, a sum of Rs.81,428/- was shown as due against loan account of borrower Sh. Surjit Singh. Due to non-deposit of installment of Rs.23,550/- due in September, 2007, a sum of Rs.1,04,900/- is shown credited to the account and showing balance due Rs.78.00 only. It is pleaded by opposite party no.1 that when borrower failed to clear loan as per loan agreement, they paid this amount of Rs.1,04,900/- by way of cheque to opposite party no.2 and then the amount was credited to the loan account of the borrower. For scanning this submission, we referred ourselves to loan account statement Ex.C6 as well as plea taken by opposite party no.1 in their written statement.

    12- In para no.3 of the written statement, it has been specifically pleaded by opposite party no.1 that by the end of March, 2006, there was a default of Rs.97,428/- towards installments. Outrightly, such assertion of opposite party no.1 is not only wrong, but false as well. Because the statement Ex.C6 goes to show that on 15.6.2006, a sum of Rs.21,478/- was only balance qua the loan amount, which swelled to Rs.45,028/- upto 15.7.2006. This loan statement of the opposite party no.2 consequently belies defence of opposite party no.1.

    13- Further plea in para no.3 taken by opposite party no.1 is that they deposited Rs.1,00,000/- by way of cheque no.970310 dated 30.3.2006 on 31.3.2006, to clear the default, under liability clause. Because installments were not regularly deposited by the borrower or his representative. But, in the entire statement Ex.C6, there is no entry of receipt of Rs.1,00,000/- on 31.3.2006 in the loan account of the borrower. Rather, on 31.3.2006, there is entry of receipt of Rs.99,500/- vide instrument no.H-970310. No doubt, opposite party no.1 have also mentioned cheque no.970310 dated 30.3.2006 in their reply, but amount shown by them is Rs.1,00,000/-. Whereas, as per entry, it was only Rs.99,500/-. After adjustment of that amount, a sum of Rs.2072/- only is reflected as balance against the loan account.

    14- It is argued on behalf of opposite party no.1 that Rs.1,00,000/- was deposited by them of their own, under certain arrangement and agreement with opposite party no.2. But such arrangement or agreement between opposite parties no.1 & 2, has not seen light of the day. Nor it was proved on the record, by tendering in evidence. Along with written arguments, Ld. counsel for opposite party no.1 appended one copy of such agreement with opposite party no.2. But we can not look into any extraneous material, which is not brought on the record. Therefore, we can not admit such agreement which opposite party no.1 marked himself as Annexure-R-AB. Because it is not proved in accordance with the law. Nor we have any material that actually such agreement was entered into between opposite party no.1 & 2.


    Therefore, we have no material that opposite party no.1 was under obligation to opposite party no.2, to pay the loan installment, in case default committed by original borrower of the loan. But at the same time, it is also not claimed by complainant that Rs.99,500/- was deposited by them in the loan account on 31.3.2006. Hence, they may have of their own deposited Rs.99,500/- in the loan account of the complainant, as maintained by opposite party no.2. But we may say that though opposite party no.1 failed to prove any agreement with opposite party no.2 to pay outstanding dues on behalf of complainant in case of default by him, but it is proved aspect by way of account statement Ex.C6 (Ex.R3) that opposite party no.1 deposited Rs.99,500/- on 31.3.2006 vide instrument no.H-970310, leaving balance of Rs.2072/- only against the complainant.

    15- After 31.3.2006, on irregular intervals, certain amount against this loan, was being deposited, which is reflected from the following table:-

    Date of Deposit


    Amount Deposited (In Rupees)


    Balance (In Rupees)

    31.5.2006


    45028


    2072

    30.8.2006


    47000


    21578

    28.10.2006


    17000


    51678

    30.10.2006


    23100


    28578

    7.12.2006


    30000


    22128

    28.12.2006


    14650


    31028

    11.1.2007


    22550


    7478

    14.1.2007


    23550


    31028

    14.2.2007


    23550


    54578

    19.2.2007


    23000


    31578

    20.3.2007


    20800


    34328

    25.4.2007


    23550


    34328

    28.5.2007


    23550


    34328

    23.6.2007


    23550


    34328

    9.10.2007


    104900


    78

    31.12.2007


    70728


    Nil

    31.12.2007


    23550


    23550



    Upto 14.2.2008, balance of Rs.23,550/- against the loan, is reflected in the statement. In that way, made out that total amount of Rs.10,61,900.00 was received from the borrower and a sum of Rs.23,550/- remained payable. In this statement, accrued ODC is also recorded as Rs.47,343.94. But there is no explanation on what account, ODC charges at the fag end of the account statement, were added to the account. Such demand shown in the account statement, can not at all be justified and legal. Rather, it appears to be arbitrarily and illegally added by opposite party no.2 to the loan account of the complainant. This means complainant qua this loan, only owed Rs.23,550/- and demand of ODC charges to the tune of Rs.47,343.94 is arbitrary and illegal, which we accordingly set aside.

    16- So, it means only Rs.23,550/- is payable by complainant under this loan account to the opposite party. Complainant had been offering that amount which opposite party refused to accept and also decline to release the vehicle. Probably, they did it for the reason that had paid on 31.3.2006, a sum of Rs.99,500/- in the loan account of the borrower.

    17- In these circumstances, we allow this complaint against both the opposite parties and direct them to release the vehicle of the complainant, on receipt of Rs.99,500/- plus Rs.23,550/- and then release vehicle of the complainant in that very condition in which, it was taken into possession by opposite party no.1. In peculiar circumstances of the case, we pass no order as to compensation and costs. Order be complied within 45 days of copy of receipt of copy of order, which be supplied to the parties free of charges. File be complete and consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Omeesh Sharma s/o Late Parmeshwari Dass, resident of Vill. Tohlu, P.O. Bhater, Tehsil Mukerian, Distt.Hoshiarpur.


    ... Complainant

    versus


    1.

    Libra Automobile Limited, through its Manager, Singriwala, Jalandhar Road, Hoshiarpur (Authorised dealer for Tata vehicles and spare parts).
    2.

    Regional Manager North Tata Motors Limited, Regional Office, Jiwan Tara 5, Parliament Street, New Delhi-110001.
    3.

    Tata Motors Limited, 26th Floor, Centre No. 1, World Trade Centre, Cuffee Parade, Membai-400 005.
    4.

    Tata Motors Pvt. Limited, Jamshedpur-831010 (Jharkhand) through its General Manager.

    ........... Opposite Parties





    1.

    The complainant namely Omeesh Sharma has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the care arre that the father of the complainant, Late Parmeshwari Dass purchased one Tata Ace Pick Up bearing Chasis No. 445111ARZV01274, engine No. 275IDI05ARZS00568 from OP No. 1- Libra Automobile Limited on 23.5.2008 for Rs. 2,69,401/- vide Invoice No. 204 dated 23.5.2008. The said vehicle is being used by the complainant to earn his livelihood by way of self-employment.
    2.

    It is the case of the complainant that the said vehicle is under warranty for a period of one year from the date of sale of vehicle or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem. The vehicle suffers from some inherent manufacturing defect. The the vehicle consumes excessive engine oil. The said fact was brought to the knowledge of OP No. 1. The OP No. 1 carried out the minor repairs, but the same did not work and ultimately, the engine of the said vehicle was overhauled on 23.10.2008.
    3.

    It is further the allegation of the complainant that even after overhauling of engine, the said vehicle did not work properly and is constantly consuming excessive engine oil. The complainant again brought this fact to the knowledge of OP No. 1. The engine of the vehicle was again overhauled on 25.2.2009.
    4.

    It is further the allegation of the complainant that after overhauling the engine of the vehicle, it did not work properly and is consuming excessive engine oil, as such it is suffering from some inherent manufacturing defect. The complainant made a request to OP No. 1 to replace the said vehicle, but of no consequences, hence this complaint.
    5.

    The opposite party No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, suppression of material facts, jurisdiction, and the complainant is not a consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased the said vehicle for commercial purpose from the replying OP and is being used for the purpose of earning profits and not to earn livelihood by way of self-employment.


    The warranty terms were limited and subject to availing of service after regular coverage. However, it is admitted that initial period of warranty is 12 months or 36000 kms, whichever is earlier. The OP No. 4 extended warranty to replace the defective parts, in case the parts are not working properly and any part subject to mis-use, accident, repaired/replaced by the outside etc., was not subject to the warranty terms. The replying OP is selling the vehicle as supplied by the manufacturer. The replying OP has sold the vehicle in the same condition as it was received from the manufacturer i.e. M/s. Tata Motors Limited. Thus, OP No. 1 – authorized dealer is not liable for the alleged manufacturing defects in the vehicle.
    6.

    It is further replied that the vehicle is not creating any kind of problem nor is suffering from any manufacturing defect. It is further replied that diesel engine consumes more oil, whereas, petrol engine consumes less oil due to technical reasons. It is further replied that on 23.10.2008, the vehicle was brought to the workshop of the replying OP for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled. The vehicle was working properly and the consumption was also normal. However, it is admitted that on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. First service was due after coverage of 5000 kms. The complainant was not experiencing any problem in the vehicle, so the vehicle was not brought for availing the first free service in time. The complainant was advised to maintain the vehicle as per recommendations of the manufacturer.


    That during road test of the vehicle, the consumption of the oil in vehicle was found normal and satisfactory. The engine was not suffering from any problem nor was overhauled, as alleged by the complainant. The complainant has concocted a false story to get the replacement of the vehicle. The vehicle in question complies with the warranties, assurances and specifications provided for it by the manufacturer regarding quality and performance of the vehicle. The services of the vehicle were never carried out as per terms and conditions of the warranty policy, whereas, the warranty issued by the manufacturer is subject to such terms and conditions.
    7.

    The opposite parties No. 2 to 4 filed the joint reply. The preliminary objections vis-a-vis maintainability, locus-standi, suppression of material facts, the complainant is not a consumer, relationship between the opposite parties and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the warranty benefits are limited to just exceptions and cannot be availed as a matter of right. It is denied that since the day of purchase, the vehicle is creating problem, as the same is suffering from inherent manufacturing defect and consumes much engine oil.
    8.

    It is further replied that the complainant brought the vehicle in question at the workshop of OP No. 1 on 20.10.08 with the problem of 'Engine Noisy'. The vehicle was duly inspected by the expert engineers of OP No. 1 and the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The complainant took the delivery of the vehicle on 23.10.08. It is also denied that even after overhauling of the engine, the vehicle did not work properly and was constantly consuming more engine oil. It is submitted that there was no overhauling of engine done by OP No. 1. It is also denied that the engine of the vehicle was overhauled on 25.2.2009. The complainant has reported at the workshop of OP No. 1 on 17.2.2009, after the vehicle had covered a distance of 10456 KM for availing the 1st Free Service.


    The complainant also reported the problem of 'high engine oil consumption'. The vehicle was duly inspected by the official of OP No. 1 and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty, besides, other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction. The complainant is making bald and baseless allegations. It is denied that the vehicle was suffering from inherent manufacturing defect. The engine of the vehicle was never overhauled at any point as alleged by the complainant and only minor defects relating to the engine were replaced.
    9.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, supplementary affidavit – Ex. C-2, death certificate of Parmeshwari Dass – Ex. C-3, Legal Heir Certificate – Ex. C-4, bill dated 23.5.2008 – Mark C-5, copy of the RC – Mark C-6, copy of Service Report – Mark C-7, Tax Invoice – Mark C-8 (six sheets), legal notice dated 23.4.2009 – Ex. C-9, AC Ex. C-10, penalty condition – Ex. C-11 (3 sheets) and closed the evidence.
    10.

    In rebuttal, the opposite parties tendered in evidence affidavit of Dheeraj Sethi – Ex. OP-1, affidavit of MS Pardeep – Ex. OP-2, Tax Invoice – Mark OP-3 (two sheets), satisfaction note – Mark OP-4 and closed the evidence on behalf of the opposite parties.
    11.

    The learned counsel for the parties have filed written arguments. WE have gone through the written submissions and record of the file minutely.
    12.

    The grouse of the complainant is that the father of the complainant purchased one Tata Ace Pick Up from OP No. 1 on 23.5.2008. That the said vehicle is under warranty for a period of one year from the date of sale or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem, as such it suffers from some inherent manufacturing defect. The vehicle consumes excessive engine oil. The OP No. 1 carried out minor repairs, but the same did not work and ultimately, the engine of the vehicle was overhauled on 23.10.2008, and thereafter also the vehicle did not work properly and is constantly consuming excessive engine oil. It is further the allegation of the complainant that the engine of the vehicle was again overhauled on 25.2.2009, but thereafter it did not work properly and is consuming excessive engine oil.



    The vehicle is suffering from some inherent manufacturing defect. The OP No. 1 has admitted that the initial period of warranty is 12 months or 36000 kms, whichever is earlier. The warranty is extended to replace the defective parts, and any part subject to misuse, accident, etc., was not subject to the warranty terms. The OP NO. 1 has raised the plea that the vehicle is not creating any kindly of problem nor is suffering from any manufacturing defect. That the vehicle was brought to the workshop on 23.10.2008 for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled, as the vehicle was working properly and the consumption of engine oil was also normal. That on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. There was no defect in the vehicle.
    13.

    The opposite parties No. 2 and 4 had raised the plea that the vehicle was duly inspected by the expert engineers of OP No. 1 and, thereafter, the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The opposite parties No. 2 to 4 had also raised the plea that the complainant reported the problem of 'high engine oil consumption' and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty,besides, the other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction.
    14.

    Now, the point for consideration is whether the vehicle in question suffers from manufacturing defect? The answer to this is in the negative.
    15.

    Admittedly, the complainant has not examined any expert to prove the manufacturing defect in the vehicle in question.
    16.

    It is a settled proposition of law that where there is no expert evidence to prove that the vehicle got any defect and only minor repairs were carried out and in the absence of any record with regard to inherent or latent defect it is not possible to hold that the vehicle is suffering from manufacturing defect. Reliance placed on 2009(1) CLT 618, Vikram Bajaj versus Hind Motors (India) Ltd., and another.
    17.

    The law is also settled that if there is manufacturing defect, then expert opinion should be given. Where petty repairs had been carried out, it does not prove that there was manufacturing defect. Under the circumstances, if only minor repairs are carried out and it has not been proved on record that there is any inherent or latent defect in the engine and expert evidence is not brought on record, the only possible conclusion is that the vehicle does not suffer from any manufacturing defect. Reliance placed on 2009(2) CLT 670 (NC).
    18.

    The complainant has claimed that the vehicle in question was overhauled twice by OP No. 1, but to prove the said plea the complainant has not produced any evidence, therefore, it is not proved on record that the vehicle of the complainant was overhauled by the opposite party No. 1. The matter does not rest here. The opposite parties have produced on record the Satisfaction Note – Ex. OP-4 dated 25.2.2009 and its careful scrutiny makes it clear that the complainant has received the vehicle in good condition and to his satisfaction. Since the complainant had received the vehicle in good condition to his satisfaction, therefore, the present complaint filed on 22.5.2009 with regard to inherent defect in the vehicle is not maintainable.
    19.

    As a result of the above discussion, it is held that the complainant has failed to prove any deficiency in service on the part of the opposite parties, with the result the complaint is ordered to be dismissed. No order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    K.Geetha,Thaivalappil House,

    P.O.Azhikode South, Complainant

    Kannur.



    1. M/s.Tata Motors Finance Ltd,

    4th floor,

    DGP House, Old Prabhadevi Road, opposite parties

    Prabhadevi, Mumbai.



    2. Tata Motor Finance,

    Opp.Ramananda Oil Mill,

    South Bazar, Kannur 2.



    O R D E R


    This is a complaint filed under section 12 of the consumer protection act for an order directing the opposite parties to issue Hire Purchase termination letter and to refund Rs.2300/- together with Rs.20,000/- as damages and Rs.2000/- as cost of this proceedings.

    The case of the complainant is that the complainant had availed a hire purchase loan of Rs.3 lakhs from the opposite party for the purchase of a motor vehicle bearing No.KL.13G.5978. Further the complainant has to pay Rs.32, 000/- towards insurance for the vehicle for two years and Rs.76, 500/- as finance charge to the 1st opposite party. As such the complainant has to pay a total amount of Rs.4, 08,500/- to the 1st opposite party. Towards the repayment of the said amount, the complainant handed over 35 post dated blank cheques to the 1st opposite party. The 1st opposite party encashed the cheques on respective due dates which started from 9.8.04 and ended on5.6.07.


    All the cheques were honored except three cheques. But the amount due on the bounced chques with penal charges and bouncing charges were duly paid by the complainant to the 1st opposite party. It was agreed between the complainant and 1st opposite party that as soon as the loan amount is paid as per schedule the Hire Purchase termination letter to cancel the endorsement in the RC book of the vehicle would be issued by the 1st opposite party to the complainant.


    But even after the receipt of the entire loan amount, the 1st opposite party sent a notice dt.24.1.08 to the complainant demanding to pay a further amount of rs.2240/-. The complainant further submitted that though she was not liable to pay the said amount. In order to avoid a dispute she paid an amount of Rs.2300/- on 4.2.08 to the 1st opposite party as per receipt No.304913030. Even after that the 1st opposite party sent further letters to the complainant demanding various amounts claiming it as due. The complainant submitted that she is not liable to pay any such amount and the 1st opposite party has duty bound to issue the Hire purchase termination letters and to return back the remaining cheques with them.


    Even though the complainant had deposited sufficient amount in the bank account to honour the cheques monthly, the opposite party used to present single cheque for the amount due on two or three months together. Hence even after payment of the entire loan amount some cheques are still in the custody of the opposite party as unused. The act of non-issuance of Hire Purchase termination letters to the complainant is deficiency of service on the part of 1st opposite party. Due to the callous and negligent act of 1st opposite party the complainant suffered great mental agony. The complainant claims an amount of Rs.20, 000/- as damages, cost and compensation.

    On getting the complaint notices issued to opposite parties but they have-not cared to appear or to file version. Subsequently both of them were called absent and set exparte.

    On the above pleadings the following issues were raised for consideration.

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

    2. Whether the opposite parties are liable to issue Hire Purchase termination letter of the vehicle having Reg.No.KL.13G.5978 to the complainant?

    3. Whether the complainant is entitled to refund Rs.2300/- which she had paid on

    4.2.08 as per receipt No.304913030 to the 1st opposite party?

    4. Whether the complainant is entitled to get any damage as alleged, If so what is

    the quantum?

    The evidence consists of the chief affidavit filed by complaint and Exts.A1 to A6.

    Issue Nos. 1 and 2

    The complainant filed chief affidavit in tune with the complaint. It is her case that she is liable to pay Rs.4, 08,500/- under the hire purchase agreement. Towards the repayment of the said amount in monthly installments 35 signed blank cheques were issued by the complainant to 1st opposite party. The period of loan was over on 5.6.07. Except 3 cheques all other cheques were duly honoured. The amount covered by the dishonored cheque together with the penal charge and bouncing charge was also duly paid by the complainant.

    Since the complainant had remitted all the installments of the loan amount, it is the duty of the 1st opposite party to issue the Hire purchase termination letter to the complainant for canceling the endorsement made in the RC book of the complainant’s vehicle. Complainant alleges that for the issuance of the Hire purchase termination letter opposite party further demanded Rs.2240/- by the letter dt.24.1.08. The complainant submitted that in order to avoid a dispute she paid an amount of Rs. 2300/- on 4.2.08. Ext.A4 receipt proves that complainant has remitted the amount. But complainant alleges that even after payment of the amount as per Ext.A4 the 1st opposite party demanded further amount for issuing Hire purchase termination letter.

    It is clear from Ext.A3 notice issued by1st opposite party to the complainant, they are demanding Rs.2, 214/- as the balance due till 31.1.08. It is also seen mentioned in the notice that the complainant has to pay the expenses, additional finance charges and for closure charges to the 1st opposite party. But no amount was seen calculated towards the same. After payment of the amount covered byExt.A4 receipts the complainant issued Ext.A5 lawyer notice to the opposite parties demanding to issue the H.P termination letter. The said notice is seen received by the 2nd opposite party on 16.10.08 by Ext.A6. But the opposite parties not even cared to send a reply for the same. The Hire purchase termination letter is also not issued to the complainant.

    In the light of the available evidence on record it can be seen that the complainant has paid entire amount liable to pay. But opposite party did not issue the termination letter. Opposite parties are liable to issue Hire purchase termination letter Hence there is deficiency of service on the part of opposite parties. The issue No.1 and 2 found in favour of complainant.

    Issue No.3

    Complainant submitted that she had remitted Rs.2300/- as per Ext.A4 receipt in order to avoid a dispute. It is seen that the complainant remit the said amount without any objection and in tune with the Ext.A3 lawyer notice issued by 1st opposite party. Complainant has not adduced evidence to prove that the amount in ext.A4 is over and above the liability. Hence it is difficult to direct 1`st opposite party to refund the said amount. Issue No.3 is found against complainant.

    IssueNo.4

    The complainant has not adduced evidence to show what all damages she has suffered due to non issuance of Hire purchase termination letter. It is understandable that in the usual course there is some difficulty and mental agony under such circumstances. In consideration of the practical difficulties and mental agony that the complainant has suffered we are of opinion that complainant is entitled to get a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Thus issue No.4 is found in favour of the complainant.

    In the result, the complaint is allowed directing the1st opposite party to issue the Hire purchase termination letter of the vehicle bearing Reg. No.KL.13.59768 and to pay Rs.5000/-(Rupees five thousand only) as compensation together with Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is allowed to execute the order against the opposite parties under the provisions of consumer protection Act.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    K.Geetha,Thaivalappil House,

    P.O.Azhikode South, Complainant

    Kannur.



    1. M/s. Tata Motors Finance Ltd,

    4th floor,

    DGP House, Old Prabhadevi Road, opposite parties

    Prabhadevi, Mumbai.



    2. Tata Motor Finance,

    Opp.Ramananda Oil Mill,

    South Bazar, Kannur 2.



    O R D E R



    This is a complaint filed under section 12 of the consumer protection act for an order directing the opposite parties to issue Hire Purchase termination letter and to refund Rs.2300/- together with Rs.20,000/- as damages and Rs.2000/- as cost of this proceedings.

    The case of the complainant is that the complainant had availed a hire purchase loan of Rs.3 lakhs from the opposite party for the purchase of a motor vehicle bearing No.KL.13G.5978. Further the complainant has to pay Rs.32, 000/- towards insurance for the vehicle for two years and Rs.76, 500/- as finance charge to the 1st opposite party.


    As such the complainant has to pay a total amount of Rs.4, 08,500/- to the 1st opposite party. Towards the repayment of the said amount, the complainant handed over 35 post dated blank cheques to the 1st opposite party. The 1st opposite party encashed the cheques on respective due dates which started from 9.8.04 and ended on5.6.07. All the cheques were honored except three cheques. But the amount due on the bounced chques with penal charges and bouncing charges were duly paid by the complainant to the 1st opposite party. It was agreed between the complainant and 1st opposite party that as soon as the loan amount is paid as per schedule the Hire Purchase termination letter to cancel the endorsement in the RC book of the vehicle would be issued by the 1st opposite party to the complainant.


    But even after the receipt of the entire loan amount, the 1st opposite party sent a notice dt.24.1.08 to the complainant demanding to pay a further amount of rs.2240/-. The complainant further submitted that though she was not liable to pay the said amount. In order to avoid a dispute she paid an amount of Rs.2300/- on 4.2.08 to the 1st opposite party as per receipt No.304913030. Even after that the 1st opposite party sent further letters to the complainant demanding various amounts claiming it as due. The complainant submitted that she is not liable to pay any such amount and the 1st opposite party has duty bound to issue the Hire purchase termination letters and to return back the remaining cheques with them.


    Even though the complainant had deposited sufficient amount in the bank account to honour the cheques monthly, the opposite party used to present single cheque for the amount due on two or three months together. Hence even after payment of the entire loan amount some cheques are still in the custody of the opposite party as unused. The act of non-issuance of Hire Purchase termination letters to the complainant is deficiency of service on the part of 1st opposite party. Due to the callous and negligent act of 1st opposite party the complainant suffered great mental agony. The complainant claims an amount of Rs.20, 000/- as damages, cost and compensation.

    On getting the complaint notices issued to opposite parties but they have-not cared to appear or to file version. Subsequently both of them were called absent and set exparte.

    On the above pleadings the following issues were raised for consideration.

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

    2. Whether the opposite parties are liable to issue Hire Purchase termination letter of the vehicle having Reg.No.KL.13G.5978 to the complainant?

    3. Whether the complainant is entitled to refund Rs.2300/- which she had paid on

    4.2.08 as per receipt No.304913030 to the 1st opposite party?

    4. Whether the complainant is entitled to get any damage as alleged, If so what is

    the quantum?

    The evidence consists of the chief affidavit filed by complaint and Exts.A1 to A6.

    Issue Nos. 1 and 2

    The complainant filed chief affidavit in tune with the complaint. It is her case that she is liable to pay Rs.4, 08,500/- under the hire purchase agreement. Towards the repayment of the said amount in monthly installments 35 signed blank cheques were issued by the complainant to 1st opposite party. The period of loan was over on 5.6.07. Except 3 cheques all other cheques were duly honoured. The amount covered by the dishonored cheque together with the penal charge and bouncing charge was also duly paid by the complainant.

    Since the complainant had remitted all the installments of the loan amount, it is the duty of the 1st opposite party to issue the Hire purchase termination letter to the complainant for canceling the endorsement made in the RC book of the complainant’s vehicle. Complainant alleges that for the issuance of the Hire purchase termination letter opposite party further demanded Rs.2240/- by the letter dt.24.1.08. The complainant submitted that in order to avoid a dispute she paid an amount of Rs. 2300/- on 4.2.08. Ext.A4 receipt proves that complainant has remitted the amount. But complainant alleges that even after payment of the amount as per Ext.A4 the 1st opposite party demanded further amount for issuing Hire purchase termination letter.

    It is clear from Ext.A3 notice issued by1st opposite party to the complainant, they are demanding Rs.2, 214/- as the balance due till 31.1.08. It is also seen mentioned in the notice that the complainant has to pay the expenses, additional finance charges and for closure charges to the 1st opposite party. But no amount was seen calculated towards the same. After payment of the amount covered byExt.A4 receipts the complainant issued Ext.A5 lawyer notice to the opposite parties demanding to issue the H.P termination letter. The said notice is seen received by the 2nd opposite party on 16.10.08 by Ext.A6. But the opposite parties not even cared to send a reply for the same. The Hire purchase termination letter is also not issued to the complainant.

    In the light of the available evidence on record it can be seen that the complainant has paid entire amount liable to pay. But opposite party did not issue the termination letter. Opposite parties are liable to issue Hire purchase termination letter Hence there is deficiency of service on the part of opposite parties. The issue No.1 and 2 found in favour of complainant.

    Issue No.3

    Complainant submitted that she had remitted Rs.2300/- as per Ext.A4 receipt in order to avoid a dispute. It is seen that the complainant remit the said amount without any objection and in tune with the Ext.A3 lawyer notice issued by 1st opposite party. Complainant has not adduced evidence to prove that the amount in ext.A4 is over and above the liability. Hence it is difficult to direct 1`st opposite party to refund the said amount. Issue No.3 is found against complainant.

    IssueNo.4

    The complainant has not adduced evidence to show what all damages she has suffered due to non issuance of Hire purchase termination letter. It is understandable that in the usual course there is some difficulty and mental agony under such circumstances. In consideration of the practical difficulties and mental agony that the complainant has suffered we are of opinion that complainant is entitled to get a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Thus issue No.4 is found in favour of the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    K.Geetha,Thaivalappil House,

    P.O.Azhikode South, Complainant

    Kannur.



    1. M/s.TataM otor5s Finance Ltd,

    4th floor,

    DGP House, Old Prabhadevi Road, opposite parties

    Prabhadevi, Mumbai.



    2. Tata Motor Finance,

    Opp.Ramananda Oil Mill,

    South Bazar, Kannur 2.



    O R D E R



    This is a complaint filed under section 12 of the consumer protection act for an order directing the opposite parties to issue Hire Purchase termination letter and to refund Rs.2300/- together with Rs.20,000/- as damages and Rs.2000/- as cost of this proceedings.

    The case of the complainant is that the complainant had availed a hire purchase loan of Rs.3 lakhs from the opposite party for the purchase of a motor vehicle bearing No.KL.13G.5978. Further the complainant has to pay Rs.32, 000/- towards insurance for the vehicle for two years and Rs.76, 500/- as finance charge to the 1st opposite party. As such the complainant has to pay a total amount of Rs.4, 08,500/- to the 1st opposite party. Towards the repayment of the said amount, the complainant handed over 35 post dated blank cheques to the 1st opposite party. The 1st opposite party encashed the cheques on respective due dates which started from 9.8.04 and ended on5.6.07. All the cheques were honored except three cheques. But the amount due on the bounced chques with penal charges and bouncing charges were duly paid by the complainant to the 1st opposite party.


    It was agreed between the complainant and 1st opposite party that as soon as the loan amount is paid as per schedule the Hire Purchase termination letter to cancel the endorsement in the RC book of the vehicle would be issued by the 1st opposite party to the complainant. But even after the receipt of the entire loan amount, the 1st opposite party sent a notice dt.24.1.08 to the complainant demanding to pay a further amount of rs.2240/-. The complainant further submitted that though she was not liable to pay the said amount.


    In order to avoid a dispute she paid an amount of Rs.2300/- on 4.2.08 to the 1st opposite party as per receipt No.304913030. Even after that the 1st opposite party sent further letters to the complainant demanding various amounts claiming it as due. The complainant submitted that she is not liable to pay any such amount and the 1st opposite party has duty bound to issue the Hire purchase termination letters and to return back the remaining cheques with them. Even though the complainant had deposited sufficient amount in the bank account to honour the cheques monthly, the opposite party used to present single cheque for the amount due on two or three months together.


    Hence even after payment of the entire loan amount some cheques are still in the custody of the opposite party as unused. The act of non-issuance of Hire Purchase termination letters to the complainant is deficiency of service on the part of 1st opposite party. Due to the callous and negligent act of 1st opposite party the complainant suffered great mental agony. The complainant claims an amount of Rs.20, 000/- as damages, cost and compensation.

    On getting the complaint notices issued to opposite parties but they have-not cared to appear or to file version. Subsequently both of them were called absent and set exparte.

    On the above pleadings the following issues were raised for consideration.

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

    2. Whether the opposite parties are liable to issue Hire Purchase termination letter of the vehicle having Reg.No.KL.13G.5978 to the complainant?

    3. Whether the complainant is entitled to refund Rs.2300/- which she had paid on

    4.2.08 as per receipt No.304913030 to the 1st opposite party?

    4. Whether the complainant is entitled to get any damage as alleged, If so what is

    the quantum?

    The evidence consists of the chief affidavit filed by complaint and Exts.A1 to A6.

    Issue Nos. 1 and 2

    The complainant filed chief affidavit in tune with the complaint. It is her case that she is liable to pay Rs.4, 08,500/- under the hire purchase agreement. Towards the repayment of the said amount in monthly installments 35 signed blank cheques were issued by the complainant to 1st opposite party. The period of loan was over on 5.6.07. Except 3 cheques all other cheques were duly honoured. The amount covered by the dishonored cheque together with the penal charge and bouncing charge was also duly paid by the complainant.

    Since the complainant had remitted all the installments of the loan amount, it is the duty of the 1st opposite party to issue the Hire purchase termination letter to the complainant for canceling the endorsement made in the RC book of the complainant’s vehicle. Complainant alleges that for the issuance of the Hire purchase termination letter opposite party further demanded Rs.2240/- by the letter dt.24.1.08. The complainant submitted that in order to avoid a dispute she paid an amount of Rs. 2300/- on 4.2.08. Ext.A4 receipt proves that complainant has remitted the amount. But complainant alleges that even after payment of the amount as per Ext.A4 the 1st opposite party demanded further amount for issuing Hire purchase termination letter.

    It is clear from Ext.A3 notice issued by1st opposite party to the complainant, they are demanding Rs.2, 214/- as the balance due till 31.1.08. It is also seen mentioned in the notice that the complainant has to pay the expenses, additional finance charges and for closure charges to the 1st opposite party. But no amount was seen calculated towards the same. After payment of the amount covered byExt.A4 receipts the complainant issued Ext.A5 lawyer notice to the opposite parties demanding to issue the H.P termination letter. The said notice is seen received by the 2nd opposite party on 16.10.08 by Ext.A6. But the opposite parties not even cared to send a reply for the same. The Hire purchase termination letter is also not issued to the complainant.

    In the light of the available evidence on record it can be seen that the complainant has paid entire amount liable to pay. But opposite party did not issue the termination letter. Opposite parties are liable to issue Hire purchase termination letter Hence there is deficiency of service on the part of opposite parties. The issue No.1 and 2 found in favour of complainant.

    Issue No.3

    Complainant submitted that she had remitted Rs.2300/- as per Ext.A4 receipt in order to avoid a dispute. It is seen that the complainant remit the said amount without any objection and in tune with the Ext.A3 lawyer notice issued by 1st opposite party. Complainant has not adduced evidence to prove that the amount in ext.A4 is over and above the liability. Hence it is difficult to direct 1`st opposite party to refund the said amount. Issue No.3 is found against complainant.

    IssueNo.4

    The complainant has not adduced evidence to show what all damages she has suffered due to non issuance of Hire purchase termination letter. It is understandable that in the usual course there is some difficulty and mental agony under such circumstances. In consideration of the practical difficulties and mental agony that the complainant has suffered we are of opinion that complainant is entitled to get a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Thus issue No.4 is found in favour of the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Daljit Kumar son of Sh. Roop Lal resident of Ward No. 10, Tanda Urmar, Tehsil Dasuya, District Hoshiarpur.

    ..... Complainant

    versus


    1.

    Tata Motors Finance Ltd., Branch Office at Chandigarh Road, near Mini Secretariat, Hoshiarpur, now the office shifted to Nirmal Complex Jalandhar, Through its Manager.
    2.

    Tata Motor Finance Ltd., C/o DG/P, House Fourth Floor, Old Prabhadevi Road, Mumbai, through its Manager.
    3.

    M/s. Libra Automobiles Ltd., Village Singriwala, Tehsil and District Hoshiarpur, through its Manager.

    .......... Opposite Parties





    1.

    The complainant namely Daljit Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant purchased a Tata ACE – Car bearing registration No. PB07-T-7583 from Libra Automobiles – OP No. 3 in the month of December, 2007 to earn his livelihood by way of self-employment. The OP No. 3 issued Invoice dated 7.12.2007 amounting to Rs. 2,53,738/-.
    2.

    It is the case of the complainant that he made the payment of Rs. 33,500/- in advance (Rs.10,000/- on 12.11.2007, Rs. 25,000/- on 7.12.2007 and Rs. 9500/- on 18.12.2007). That OP No. 3 disclosed that there is an offer by the makers that if the car is purchased in the month of December, 2007, then the discount of Rs. 8000/- is available, as such the payable amount comes to Rs. 2,01,238/-. It is averred that the agent of OPs No. 1 and 2, who was present in the office of OP NO. 3, offered 9% interest reducing rate on finance amount. Thus, the complainant agreed to finance the vehicle from OP No. 1 for Rs. 2,01,000/-.
    3.

    It is the allegation of the complainant that OP NO. 1 got signatures of the complainant on blank papers with the understanding that the agreement would be scribed later on, as per terms and conditions settled between the parties. The OP No. 1 made the payment of Rs. 2,01,000/- to OP No. 3 – Libra Automobiles Ltd. That the complainant is paying the instalments of loan amount to OP No. 1 regularly.
    4.

    It is the grouse of the complainant that in the month of December, 2008, when he went to the office of OP No. 1 to deposit the instalment, the officials of the opposite party asked him to deposit additional amount of Rs. 18,000/-. That the Manager of OP No. 1 also raised the threat that if the amount of Rs. 18,000/- is not deposited, in that eventuality, the possession of the vehicle will be taken. However, the complainant deposited the amount of Rs. 8000/- in the month of December, 2008.
    5.

    It is further the allegation of the complainant that he visited OP No. 1 with the request to supply the Statement of Loan Account, but all in vain, thus the complainant served a legal notice upon OP No. 1. It is further the allegation of the complainant that he never took the loan of Rs. 2,27,000/- from OPs No. 1 to 3. The opposite parties are charging higher rate of interest on the amount of Rs. 2,27,000/-. The opposite parties raised the threat that they will take the possession of the vehicle and, thereafter, it will be sold to some other person, hence this complaint.
    6.

    The opposite parties no. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, the complainant is not a consumer and concealment of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant was not regular in paying the loan amount in instalments. It is denied that the signatures of the complainant were obtained on blank papers.


    The complainant had committed breach of the terms and conditions of the agreement by making a default in payment of the loan amount in instalments, as agreed between the parties. That the complainant executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and thereafter, obtained finance. The complainant has to pay the loan instalments in time and in case of default, the answering opposite parties had the right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan amount, per terms and conditions of the agreement dated 7.12.2007.

    7.

    It is further replied that the vehicle was taken for commercial purpose and was being used for business purposes. It is provided under the agreement that all disputes arising under the said agreement are to be referred to the sole arbitration of an Arbitrator to be nominated by Tata Motors Finance Limited. The agreement also provides that the Courts at Mumbai alone shall have jurisdiction in respect of any matter arising out of the Agreement. The case of the complainant pertains to accounts, thus it will not fall within the purview of the Consumer Court. The complainant after executing the Loan Agreement agreed to pay the instalment every month. The complainant made a default in the payment of the loan instalment with a view to cheat the replying opposite parties. The complainant had availed the loan of Rs. 2,27,000/-.
    8.

    It is further replied that the vehicle in question was financed by the replying opposite parties and the invoice amounting to Rs. 2,53,748/- was issued. Out of the amount of Rs.2,53,748/- , the complainant paid Rs. 26,748/- towards margin money. The complainant issued cheques bearing No. 33687 dated 11.7.2008, bearing No. 33688 dated 11.8.2008, bearing No. 33689 dated 11.9.2008, bearing No. 33690 dated 11.10.2008, but the complainant failed to ensure sufficient funds to clear the said cheques.
    9.

    The OP NO. 3 filed a separate reply. The preliminary objections vis-a-vis maintainability and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased Tata Ace Vehicle on 7.12.2007 for Rs. 253748/- and not for Rs. 253738/-. It is replied that the margin money is Rs. 44,500/- and not Rs. 33,500/-, as alleged by the complainant. The detail of the amount charged for the purchase of the vehicle in question had been given vide para No. 2 of the reply. It is denied that the price of the vehicle comes down to Rs. 2,09,238/- after deduction of margin money.


    It is also denied that after discount of Rs. 8000/-, the price of the vehicle comes to Rs. 2,01,238/-, as alleged by the complainant. It is also denied that the amount of Rs. 2,01,000/- was got financed by the complainant. It is also denied that the agreed rate of interest was 9%. It is also denied that the OP No. 1 gave Rs. 2,01,000/- as finance amount to the replying OP. It is further replied that the demand of Rs. 18000/- was never raised, as alleged by the complainant.
    10.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, receipts dated 7.12.2007 – Mark C-2, dated 12.11.07 – Mark C-3, dated 7.12.07 – Mark C-4, dated 18.12.2007 – Mark C-5, dated 12.11.07 – Mark C-6, dated 27.1.2009 – Mark C-7, dated 12.1.2007 – Mark C-8, dated 31.12.2008 – Mark C-9, dated 20.12.2008 – Mark C-10, postal receipts – Mark C-11, notice dated 29.1.2009 – Mark C-12, and closed the evidence.
    11.

    In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Mr. Johnson Andrews – Ex. OP-1, whereas, the opposite party No. 3 tendered in evidence affidavit of Dheeraj Sethi – Ex. R-1 and closed the evidence on behalf of the opposite parties.
    12.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    13.

    The learned counsel for the complainant made a reference to Para No. 1 of the reply, on merits, filed by OP No. 3 – M/s. Libra Automobiles Ltd., wherein it is stated that the cost of the vehicle is Rs. 2,53,748/- + Rs. 11,815/- (insurance premium) + Rs. 12,437/- (expenses for RC and file charges etc.) and in this way, the total amount comes to Rs. 2,78,000/-. The detail of the finance amount received has also been given. The Tata Company has financed the vehicle for Rs. 2,27,000/- minus Rs. 1,500/- = Rs. 2,25,500/-. That vide para No. 2 of the reply, it is submitted that the complainant had paid the margin money of Rs. 44,500/-. The complainant was entitled for the cash discount of Rs. 8,000/-.
    14.

    Now, it is clear that the complainant has paid Rs. 44,500/- as margin money and the cash discount of Rs. 8,000/- has also been allowed, therefore, the amount of Rs. 44,500/- + Rs. 8,000/- = Rs. 52,500/-, is required to be deducted from the cost of the vehicle i.e. Rs. 2,53,748/- minus Rs. 52,500/- = Rs. 2,01,248/-.


    Thus, the complainant is liable to pay Rs. 2,01,248/- to opposite parties No. 1 and 2 along with other charges as agreed between the parties. Admittedly, the opposite parties No. 1 and 2 had financed the vehicle for Rs. 2,27,000/-. The opposite parties No. 1 and 2 had also not explained with regard to the deduction of Rs. 1,500/- made from the finance amount of Rs. 2,27,000/- .
    15.

    The learned counsel for opposite parties No. 1 and 2 raised the arguments that the complainant had executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and obtained finance from Tata Motors Limited, as such, the complainant and opposite parties No. 1 and 2 are bound by the terms of the agreement.


    The complainant had agreed to pay the loan instalments in time and in case of default, the opposite parties No. 1 and 2 had every right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan given to the complainant. The complainant after executing the loan agreement agreed to pay the instalments every month. The complainant made a default in the payment of the instalments . The complainant obtained loan from opposite parties No. 1 and 2 with the promise to repay with interest in 4 years in 47 monthly instalments in the sum of Rs. 7,409/-.
    16.

    As a result of the above discussion, the complaint of the complainant is accepted and opposite parties No. 1 and 2 are directed to rectify the loan account and loan installments within the frame work of the agreement executed with the complainant i.e. as per terms and conditions of the said agreement. Further , the OPs No.1 and 2 are directed to supply the information with regard to loan account of the complainant.


    Further, the OP No.1 and 2 are restrained from taking the possession of vehicle No. PB07-T-7583 except in due course of law. Litigation expenses are assessed at Rs.1000/- to be paid by OP No.1,2 to the complainant within one month from the receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Tarsem Singh aged 49 years s/o of Sh. Telu Ram r/o village Thana, Tehsil Garhshankar, Distt. Hoshiarpur.

    ….Complainant.

    Versus



    1- M/s Tata Motors, Trade Centre, Senapati Sapat Marg, Lower, Parel, Mumbai-4000 13 through its authrised signatory.

    2- M/s Dada Motors Ltd., Savitri Complex-I, G.T. Road, Dholanwal, Ludhiana through its Manager.

    3- M/s Hind Motors, 15, Industrial Area-I, Chandigarh.

    ….Opposite parties.








    O R D E R




    1- Complainant purchased Tata Safari on 28.8.2005 from opposite party no.2, an authorized dealer of manufacturer opposite party no.1. The vehicle carried warranty of 18 months. It was registered subsequently vide no.PB07-Q-0027. On 25.6.2006, when complainant was going to his native place from Delhi, it suddenly broke down on the road. Hence, vehicle was taken to opposite party no.3, who disclosed that it has developed major manufacturing defect in its fuel injection.


    Opposite party no.2 was also informed and vehicle taken to them. After examining, opposite party no.2 intimated that fuel injection system is having manufacturing defect and required to be replaced with a new one. Such defect occurred during warranty period. So, requested opposite party no.2, to replace it free of costs. Opposite party no.2 replaced the same and demanded Rs.1,03,308/- as cost of replaced part and labour, but they refused to deliver the vehicle and compelled complainant, to pay the demanded amount against invoice dated 14.8.2006 and then took delivery of the vehicle. They at that time also took his signatures on blank forms.


    Same replaced fuel injection system again developed manufacturing defect in June, 2007 and as a result, took vehicle to opposite party no.2 on 6.6.2007, who again charged him Rs.91,225/- vide invoice dated 14.7.2008, as the cost of replaced part. By providing defective part during warranty and charging him cost of the part, is claimed in this complaint u/s 12 of the Consumer Protection Act, 1986, to be unfair trade practice adopted by the opposite party and claimed refund of Rs.1,03,308/- and Rs.91.225/- alongwith compensation of Rs.50,000/- and litigation expenses Rs.15,000/-.

    2- Opposite parties no.1 & 2 in joint written statement, have not denied purchase of Tata Safari by the complainant. But have denied that the vehicle had manufacturing defect. They averred that complainant was irregular in servicing the vehicle and also negligent in maintaining it, as per terms and conditions of the warranty given in the owner’s manual book provided to the complainant, at the time of delivery of the vehicle. Complainant got the vehicle serviced from unauthorised service station, not recommended by the opposite party. Hence, can not take benefit under the warranty.


    It was specifically mentioned in job card dated 29.6.2006 that complainant got the services/repair done from unauthorized dealer. Due to such reason of getting the vehicle serviced through unauthorized dealer, against terms and conditions of the warranty, the fuel injection system became defective. Also complainant had not got done services of the vehicle within stipulated period, after stipulated mileage, as per service manual of the vehicle. Complainant for the first time, brought the vehicle on 29.12.2005 after covering mileage of 23,776 kmts, thereafter on 1.1.2006 after covering mileage of 30,885 kmts; on 11.3.2006 after covering 38,536 kmts; on 6.4.2006 after covering 44,020 kmts and on 29.6.2006 after covering mileage of 56,361 kmts. So, he himself infringed services conditions of the vehicle. The vehicle had no manufacturing defect.


    Complainant had taken vehicle to Hind Motors, Chandigarh, where fuel injection pump was inspected by engineers of the manufacturer of the pump, who reported that complainant carried out jobs on the vehicle from unauthorized workshops not recommended by opposite party no.1. So, they rejected to carry out job under warranty. Thereafter, complainant brought vehicle to opposite party no.2, where was charged for cost of the fuel injection pump, as he had infringed the warranty, by getting vehicle serviced and repaired through unauthorized dealers.

    3- Opposite party no.3 by separate reply, has also taken similar objections, as were taken by opposite parties no.1 & 2. They claimed that complainant had been getting his vehicle serviced through unauthorized service stations, against terms and conditions of the warranty. He also failed to get the vehicle serviced in time, as mentioned in the warranty policy/book. It was due to such reason that defect in fuel injection system developed. He as such can take benefit of his own wrong.


    They claimed that the Fora has no jurisdiction, to try the complaint. They denied having told the complainant, when brought vehicle to their workshop that fuel injection system had manufacturing defect. Rather on checking, it was found that vehicle was serviced by complainant from unauthorised service station. Complainant refused to get the work done from them on payment basis. So, took his vehicle to opposite party no.2. There is no deficiency in service on their part.

    4- In support of their respective pleadings, parties adduced evidence by way of affidavits and documents.

    5- We have heard ld. counsels for the parties and perused the record minutely.

    6- Admitted aspects in this complaint are that complainant on 28.8.2005, purchased Tata Safari from opposite partyno.2, dealer of manufacturer opposite party no.1. The vehicle carried warranty of 18 months. During subsistence of warranty period on 25.6.2006, defect in fuel injection system of the vehicle developed. Then complainant first for rectification of the same, visited workshop of Hind Motors opposite, party no.3 on 30.6.2006.


    They required complainant to get fuel injection system of the vehicle repaired on payment and recorded such aspect in job card Ex.R2. Complainant then took vehicle to dealer, opposite party no.2 on 29.6.2006 and got the same repaired vide invoice Ex.C3, by paying Rs.1,03,308/-. Complainant has sought refund of this amount, on ground that defect in fuel injection system occurred during warranty period. So, being manufacturing defect, the manufacturer was liable to replace the same, free of cost.

    7- The second event is that after replacement of defective fuel injection system under invoice Ex.C3 dated 4.8.2006, it again became defective and complainant had to spend Rs.99,417/- vide invoice dated 14.7.2007 Ex.C4 of opposite party no.2. Refund of amount so spent, is also claimed by the complainant.


    Opposite party have resisted claim of the complainant, on ground of infringing and violating terms and conditions of the warranty. As complainant got his vehicle serviced at service stations, not recommended or approved by opposite party no.1 and also failed to get service of the vehicle at appropriate recommended mileage. It was for such reason that defect in fuel injection system occurred. Complainant himself violated the warranty terms and conditions, so not entitled for any relief.

    8- Complainant has placed on the record, job cards Ex.C5 to Ex.C11. Following positions emerges from these job cards:-



    Exhibits Date of Job Card Kilometres Travelled.

    Ex.C5 29.12.2005 23,776

    Ex.C6 1.2.2006 30,855

    Ex.C7 11.3.2006 38,536

    Ex.C8 6.4.2006 44,020

    Ex.C9 8.5.2006 49,387

    Ex.C10 29.6.2006 56,361

    Ex.C11 24.10.2006 66,454



    9- Ex.C12 is the original Owner’s Manual issued by opposite party no.2 to the complainant at the time of sale of the vehicle. This manual also contains record of services performed. First service at 5000 kmts was got done by the complainant after driving the vehicle for 6072 kmts and second instead of recommended 10,000 kmts., was got done at 12088 kmts. But no service of the vehicle was done after travelling 15,000 kmts and 20,000 kmts.


    Also services required to be done at 35,000 kmts, 45,000 kmts, 60,000 kmts, 70,000 kmts, 75,000 kmts and 85,000 kmts, were not got done. There is no entry of getting vehicle serviced after recommended coverage of the vehicle, in terms of kilometers. Absence of entry of service of the vehicle, in the Owner’s Manual, reflects that with such services were got done by the complainant or if got vehicle serviced, it was done through some workshop, not authorized by the manufacturer.


    The services recorded in Owner’s Manual Ex.C12 were got done from opposite party no.2. So, it means services which were required to done at 15,000; 20,000; 35,000; 45,000; 60,000; 70,000; 75,000 kmts. either were got done through unauthorized service station or at all not done by the complainant. As a result, complainant himself infringed terms and conditions of the warranty, copy of which is Ex.R1.

    10- As complainant is proved having infringed warranty terms and conditions and defence of opposite party is also that defect in fuel injection system, was on account of infringement of the warranty terms and getting vehicle serviced by the complainant through unauthorized service stations, therefore, for such breaches committed by him, it can not be concluded that it was a manufacturing defect in fuel injection system and occurred during warranty period.
  • TanuTanu Senior Member
    edited October 2009
    K.J.Varkey,

    S/o Late Joseph,

    R/at Karimbanakkal House, : Complainant

    Plachikkara PO, Hosdurg,Kasaragod.

    (T.M.Jose,Hosdurg)



    1.M/s Tata Motors Ltd,

    Ist floor, Bombay House,

    Homi Mody Street, Fort Mumbai-1. : Opposite parties

    2. M/s Sakthi Automobiles Ltd,

    Kannur Branch,Kannur.

    (Adv.P.V.Jayaraj,Kasaragod)

    ORDER

    SRI.K.T.SIDHIQ : PRESIDENT:

    The case of the complainant, a PWD contractor, is that the TATA SFC 709 38 vehicle he purchased to execute the PWD works on 30/11/2004 caused repairs due to its manufacturing defect during the warranty period. On 17/6/05, the clutch disc of the vehicle was broken and the complainant spent Rs.5000/- to repair it instead of the manufactures warranty assurance. Again on 27/6/05 the gear box of the vehicle was broken when the vehicle was moving on reverse gear. The vehicle was taken by opposite party No.2 to their workshop at Kannur. The complainant demanded the replacement of the gear box since it has provided with the warranty and the damage was caused within one year of the purchase. When the complainant repeatedly requested the opposite parties for replacing the parts, the opposite parties assured that since there was no new parts with them the complainant has to purchase the gear box from outside and the amount spent for the purchase of gear box will be adjusted at the time of periodical service offered by Ist opposite party. 2nd opposite party also assured that the substituted parts will also cover warranty if it has suffered any damages in future. Trusting the words of the opposite party complainant replaced the gear box spending Rs.10,000/-. Moreover, the complainant has to hire another vehicle for executing the works since the vehicle was kept in the work shop for repair for 8 days. Again on 16/11/05 also the gear box and shaft was broken. On investigation 2nd opposite party told that the gear box was broken due to the manufacturing defects of the engine system. Since the complainant needed the vehicle urgently to complete the contract works he constrained to pay the cost of replaced parts ie Rs.15,000/-. The opposite parties were liable to replace the gear box free of cost as per warranty since the damages were caused due to the manufacturing defects of the entire system of vehicle. Though the complainant caused a lawyer notice demanding the replacement of the vehicle or to pay a sum of Rs.25,000/- towards the expenses incurred for replacement of spare parts with a compensation of Rs.10,000/- it was not even properly responded. Hence the complainant claiming a compensation of Rs.52,000/-.



    2. Both opposite parties filed separate versions. According to them the complainant is not a consumer since the vehicle was purchased by the complainant for commercial purpose. On merits the contention of the opposite parties are that the alleged clutch disc was broken not due to any manufacturing defect but it was worn out with burnt marks due to overloading of vehicle. The warranty does not extend to repairs/defects that come across due to improper usage.

    As alleged by the complainant the vehicle was not taken on 27/6/05 for repair. It was brought on 16/11/05 with a breakdown complaint. The defect seen on that occasion was the breakage of 4th gear and counter shaft gear teeth. The broken teeth had fallen in between the gear and the gear box case was also seen broken. The said defect is caused due to improper usage of the vehicle. The warranty provided does not covers the defects occurred due to improper usage of the vehicle. Hence the opposite parties are not liable to compensate the complainant.

    3. On the side of the complainant Exts.A1 to A6 series marked. On the side of opposite parties Exts.B1&B2 marked. Both sides heard.

    4. The learned counsel Shri.P.V.Jayaraj appearing for opposite parties contended that the complainant is using the vehicle for commercial purpose and hence he is not a consumer. The said contention is not sustainable in view of the decision of the Hon’ble J&K High Court in the case of Alson Authorities Pvt.Ltd vs. J&K Project Construction Corporation Ltd & Ors. reported in 2005 CTJ 139(J&K High Court). In the said decision the Hon’ble High Court held as follows:

    Even if a person who buys goods and uses them himself exclusively for the purpose of earning livelihood is within the definition of expression” consumer”. Thus a taxi driver buying a vehicle-taxi for self employment yet he cannot be branded as a non-consumer. In the instant case the vehicle was purchased for the purposes of supervision of the works. If a Corporation is running the fleets of vehicles for passenger service, certainly it could be said that the Corporation is engaged in commercial activities. But when a Corporation in the instant case is not engaged in such activities or in business activities and has purchased the vehicle namely Ambassador Car for the purpose of supervision of the works by the officers then in the opinion of the court, the complaint can be said to be a consumer.

    Aagain the Hon’ble National Consumer Disputes Redressal Commission in the case of Harsolia Motors vs National Insurance Co.Ltd reported in I (2005) CPJ 27(NC) has drawn a distinction between Commercial purpose and commercial activity and defined ‘ commercial purpose’ as

    Goods purchased or services hired should be used in any a activity Directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or hired in an activity which is not directly intended services to generate profit, it would not be a commercial purpose’



    In this case, the opposite parties have no case that the complainant is hiring the vehicle and thereby generating the profit. So it cannot be considered that the vehicle is intended for generating any profit directly to attract the exclusion clause ‘ Commercial purpose’



    5. It is the further contention of the opposite parties that the defects were occurred due to the improper usage of the vehicle and not due to the manufacturing defects. But to substantiate the contention of improper usage the opposite parties have not produced any documents. Ext.B2 is the Operator’s service book with warranty pertaining to the vehicle of the complainant. Page 3&4 of the said service book details the terms and conditions of the warranty. But it nowhere states that the said warranty is offered based on any adequate or proper test nor the opposite parties have a contention that the warranty is given based on any adequate or proper test. In the absence of such an adequate proper test report pertaining to every vehicle it cannot be presumed that all the vehicles manufactured by opposite parties are free from manufacturing defects.



    6. The learned counsel for the opposite parties Sri.P.V.Jayaraj relied very much on the decisions of the Hon’ble National Consumer Disputes Redressal Commission reported in (2007) CPJ 204(NC), II(2006)CPJ 143(NC) and I(2007) CPJ 2(NC) to support his contention and he argued that it was the duty of the complainant to prove their case of manufacturing defect of the vehicle by adducing expert evidence. Evidently the complainant has not produced any expert evidence to prove that the defects to the vehicle were caused due to any inherent manufacturing defects. Hence on that ground the complainant is not entitled for the reliefs claimed But in the case of DAGADU BHAIRO BHOSALE Vs SCOOTER INDIA LTD.& Anr. Reported in II (2006)CPJ 143(NC) the Hon’ble National Commission rejected the claim of the complainant for the cost of replacement of spare parts on the ground that the receipts produced by the complainant were towards the purchase of consumables like nut, bolts, gear oil, battery pacers etc and they were not covered under the warranty. That means if the spare parts purchased were having the warranty cover then opposite parties would have been liable to refund the said sums.



    7. In the instant complaint it is the case of the complainant that he has to pay for the parts of gear box shaft etc that was covered under the warranty. Ext.A6(a) to A6(f) are the bills for the purchase of spare parts and its repair charges. The total of the same would fetch Rs.10264/.- The complainant is entitled to get refund of the said amount.



    In the result, the complaint is allowed in part and the opposite parties are directed to pay Rs.10264/- to the complainant with a cost of Rs.2500/-. Time for compliance is 30 days from the date of receipt of copy of the order. Failing which the complainant is entitled to get interest @ 9% per annum for Rs.10264/- from the date of complaint till payment.
  • adv.singhadv.singh Senior Member
    edited January 2010
    H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT HAMIRPUR.
    FIRST APPEAL NO. 71/2009

    DATE OF DECISION: 27.11.2009

    In the matter of:



    M/S Sikand & Company, Tata Motors, Commercial Vehicle Dealer, Chambaghat, District Solan, H.P.

    … … Appellant.



    Versus



    1. Baldev Parmar son of Sh. Lachman Singh, r/O Village and P.O. Barara, Tehsil Bhoranj, District Hamirpur, H.P. through his Special Power of Attorney Sh. Shiv Kumar S/O Sh. Roshan Lal, R/O Village & P.O. Barsar, Tehsil Bhoranj, District Hamirpur, H.P.

    2. Tata Motors Limited, Pune, Maharashtra.

    … … Respondents.


    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mr. Chander Shekhar Sharma, Member.



    Whether approved for reporting? No



    For the Appellant: Mr. Ratish Sharma, Advocate, vice Mr. Dalip K. Sharma, Advocate.


    For the Respondents: Mr. Rajesh Heer, Advocate,

    for respondent No.1.



    Mr. Peeyush Verma, Avocate, vice

    Mr. Mohinder Verma, Adocate,

    for respondent No.2.


    O R D E R



    Justice Arun Kumar Goel (Retd.), President (Oral).





    1. We have heard learned Counsel for the parties and have also examined the record of this case. While allowing Complaint No.72/2006, District Forum, Hamirpur, on 10.9.2008 has directed the appellant as under:-



    “9. On these facts of the case, we pass the following order.



    The opposite party No.1 is ordered and directed to replace the pump of the vehicle purchased by the complainant from it with new pump of similar description, which shall be free from any defect on production of vehicle for that purpose and to pay compensation to the tune of Rs.10,000/- besides cost of complaint, which we assess at Rs.2,000/-. The complainant shall produce the vehicle to opposite party No.1 within a period of 30 days from the date of receipt of certified copy of this order. The complaint stands disposed of accordingly. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room”.


    2. Number of pleas were raised in support of this appeal by Mr. Ratish Sharma, learned Counsel for the appellant , like respondent No.1 was not a consumer, reply filed by his client has not at all been looked into by the District Forum below. Whenever vehicle was brought for maintenance/repair, needful was done as was required by his client from time to time and that there was no expert evidence on the basis of which the impugned order could be passed when case of respondent No.1 in his complaint was that the vehicle had manufacturing defect. Therefore, according to Mr. Sharma, the impugned order is liable to be set aside. He was supported on all these pleas by Mr. Verma, learned Counsel for respondent No.2, the manufacturer of the vehicle and he submitted that the appeal may be allowed.


    3. On the other hand, Mr. Heer, learned Counsel for respondent No.1 supported the order of the District Forum below, as according to him vehicle was having inherent defects and that too within warranty period. Thus, he prayed for upholding the order passed by District Forum below while dismissing this appeal.

    4. We are dismissing this appeal without going into the contentions urged on behalf of the parties on merits looking to the direction issued as well as meagre amount awarded in favour of respondent No.1. We clarify and reiterate in this behalf that we have not expressed any opinion so far merits of the pleas urged on behalf of the appellant are concerned. It is also pointed out that this will not be a precedent for other similar cases.

    Accordingly while dismissing the appeal, without expressing any opinion on the merits of the case simply on the ground of meagre compensation awarded, the appeal stands disposed of, leaving the parties to bear their own costs.



    All interim orders passed from time to time in this appeal shall stand vacated forthwith.





    Learned Counsel for the appellant as well as respondent No.2 submitted that they shall collect copy of this order free of cost from the Court Secretary as per rules at Shimla, whereas learned Counsel for respondent No.1 submitted that copy of this order may be sent to him at his address, District Courts, Hamirpur. While accepting this prayer, office is directed to do the needful.



    Hamirpur,

    November 27, 2009.
  • adv.singhadv.singh Senior Member
    edited January 2010
    FIRST APPEAL NO. 230/2007.
    DATE OF DECISION: 17.11.2009
    In the matter of:
    1. M/s Sikand & Company Chambaghat, Tehsil & District Solan,

    through its Partner;



    2. The Manager M/s Sikand & Company 37 Industrial Area

    Nagrota Bagwan through its Partner/Manager;



    3. Tata Motors Ltd (Formally known as TELCO) Jeevan Tara

    building-5 Sansad Marg, New Delhi-01.

    … … Appellants
    Versus
    Montessorie Cambridge School, Raja Ka Baag

    Tehsil Nurpur, District Kangra a Unit of Himalya

    Education & Research Society through its Authorized

    Officer-cum-Manager.

    … … Respondent.
    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mr. Chander Shekhar Sharma, Member.



    Whether approved for reporting? Yes.



    For the Appellants: Mr. Vivek Singh Thakur, Advocate vice

    counsel Mr. Dinesh Sharma and Mr. Rajinder Singh

    Thakur, Advocate vice Mr. Dalip K. Sharma



    For the Respondent: Mr. Arvind Sharma, Advocate.

    O R D E R

    Per Mr. Chander Shekher Sharma, Member.
    This appeal is directed against the order passed by District Forum, Shimla, Camp at Solan, in Consumer Complaint No. 95/2004, decided on 1.3.2007 whereby the complaint of the respondent was allowed and appellants were held liable to refund Rs. 1,84,000/- to the respondent-school alongwith interest @ 9% per annum with effect from the date of filing of the complaint. In addition to this, they were also directed to pay a sum of Rs. 50,000/- as compensation to the complainant for indulging in deficiency in service/unfair trade practice, besides litigation cost quantified at Rs. 3,000/-.

    2. Facts of the case as they emerge from the record are, that respondent in the present case is a school which is running under the name and style of Montessorie Cambridge School, Raja Ka Bagh, Tehsil Nurpur, District Kangra, H.P, a Unit of Himalaya Education and Research Society. Respondent was in a need of commercial vehicle for the purpose of welfare of the students and the representatives of appellant No.2 approached it for fulfilling its demand and promised that they will get the best services available, since they are dealers of Tata Motors, the manufacturer, i.e. appellant No.3.

    3. Hence on the promises and assurances given by appellant No.2, the respondent agreed to purchase Tata City Rides Buses from appellants 1 and 2, being manufactured by appellant No.3 and for this purpose it paid a sum of Rs. 10,000/- in cash on 17.3.2004 to appellant No.2 and receipt was also issued by the representative of appellant No.2 for the said sum. Requirement of the respondent for the said buses was also made clear to the appellants that the vehicles should be in yellow and blue colour as they are being used for the purpose of school and said colours have been made mandatory by the Transport Authority for the purpose of plying school buses in the State of HP.

    4. In view of the order placed by the respondent, appellants supplied the bus bearing chassis No. 357151 EWZ 050866 Engine No. 497-SP 41 DWZ-873508 to the complainant on 22.3.2004 and the 2nd vehicle bearing Chassis No. 357151 BVZ050283, Engine No. 497 SP41BYZ861380 on 25.3.2004, and the vehicle were delivered in school premises as per commitment made by appellant Nos.1 and 2. At the time of Registration of vehicle bearing Chassis No. 357151, it has come to the notice of the respondent that this vehicle supplied was of 2003 model, whereas it should have been of 2004 model. Since the payment for booking of the buses were made in cash on 17.3.2004, and even the colour of the vehicle was not yellow and blue as per requirement of the School Authority, the buses supplied to the respondent were of base White Colour. Hence the complaint under Section 12 of Consumer Protection Act, 1986 was filed for deficiency of service/unfair trade practice on the part of the appellants.

    5. Appellants contested and resisted the complaint and submitted its version. They pleaded that there was no deficiency of service/unfair trade practice on their part and it was also stated by them in the reply that the respondent had verified all documents and condition of the bus before its purchase as such respondent is not entitled to any relief in the present complaint.

    6. Brief resume of evidence led by the appellants/respondent in nutshell is, that appellants in support is their case filed affidavit of Anil Sikand Partner of M/s Sikand & Company. Respondent in support of his case filed affidavit of Ram Kishore, its Authorised Signatory-cum-Manager and various documents viz. resolution of school, receipt of advance payment, insurance cover note, bills, sale certificate and certificate of registration of vehicle, as Annexures C-1 to C-7 and copy of notice served by respondent upon the appellants through its learned counsel Annexure C-8 and reply to said notice given by Sh. R.S. Chaudhary, Advocate Annexure C-9. In addition to this reliance was also placed upon various other documents Ext. CA proforma invoice, accounts statement Annexures CB & CC, certificate of Financier Sri Ram investment Ltd. Annexure CD and various transitory documents of vehicle Annexure CE, CF-1 and CF-2 and certificate of CA Annexure CG and proforma invoices CH, CJ.

    7. We have heard learned counsel for the parties and have also gone through the case file minutely.

    8. Learned counsel for the appellants argued that there is no deficiency of service/unfair trade practice on the part of their clients and they also laid main stress on the fact, that the respondent had verified all the documents and condition of the bus before its purchase.

    9. Mr. Sharma has supported the order of the District Forum below, and argued that this is a clear cut case of deficiency in service/unfair trade practice on the part of the appellants.

    10. After hearing the learned counsel for the parties, we are convinced that the order of the District Forum below does not suffer from any infirmity and thus calls for no interference in this appeal. Reason being that this is a clear cut case of deficiency of service/unfair trade practice on the part of the appellants. Since it is clear from the evidence on record viz, sale certificate Annexure C-6 wherein in column No. 8 month and year of manufacturing of vehicle bearing chassis No. 357151 is given as May, 2003. Even this fact also finds corroboration from certificate of registration issued by Registering and Licensing Authority, Kangra Annexure C-7 wherein the Registering and Licensing Authority mentioned month and year of manufacture May, 2003. On the other hand it is clear from receipt dated 17.3.2004, Annexure C-2 that the representative of the appellants had received sum of Rs. 10,000/- for booking 2 buses of Tata City Rider. There appears to be no force in the argument of learned counsel for the appellants, that the respondent had verified all the documents and condition of bus before its purchase as this fact had come on record that at the time of delivery of the bus bearing chassis No. 357151 in the school on 2004. Only documents which were delivered to the respondent at the time of delivery of the said vehicle were Annexures CE, CF/1 and CF/2 and sale certificate Annexure C-6 was not delivered to the respondent. Moreover it is also clear from Annexure CE, copy of the sale certificate dated 18.3.2004 issued by Manager sales on behalf of Sikand & Company wherein it has been stated that bus bearing aforesaid chassis number 357151 EWZ050866 were sold by the OP and the sale documents were prepared subsequently which were sent directly to the financing company/bank. Thus it could not have come to the notice of the respondent that the bus was manufactured in May, 2003 at the time of taking delivery of the bus in question. The unfair trade practice/deficiency of service committed by the respondent had come to the notice of respondent after the registration of the bus on 29.4.2004 per Annexure C-7, copy of registration certificate. Thereafter the respondent had immediately filed the complaint. The compensation amounting to Rs. 50,000/- has been awarded by the District Forum below is reasonable and just keeping in view the nature of magnitude of unfair trade practice/deficiency of service perpetrated the appellants by selling a 2003 model bus, instead of 2004 model and also not supplying bus of yellow/blue colour to the respondent which is mandatory as per instructions of Transport Authorities, since the plying of school vehicles is supposed to be of these colours.

    11. No other point was urged.

    In view of the above discussion and keeping in view the legal position explained above, we are of the considered view that there is no reason to interfere with the well reasoned order passed by District Forum, Shimla Camp at Solan, in Consumer Complaint No. 95/2004, decided on 1.3.2007 and the same is upheld, leaving the parties to bear their own costs.

    All interim orders passed from time to time in this appeal shall stand vacated forthwith.

    Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.



    Shimla,

    November 17,2009.
  • adv.singhadv.singh Senior Member
    edited January 2010
    FIRST APPEAL NO.15/2009

    DATE OF DECISION: 9.12.2009.
    In the matter of:

    Tata Motors Limited, Commercial Vehicle division, 5, Jeewan Tara Building, Parliament Street, New Delhi and having its one of the office at Tata Motors Limited SCO No.170-171-172, Ist Floor, Sector 17, Chandigarh and wrongly mentioned in the complaint as M/S Tata Motors Limited, Chandigarh through its Manager.

    … … Appellant.
    Versus

    1. Shri Sidarth Walia son of Shri Vijay Kumar Walia, resident of Mohalla Dhabon, Nahan, District Sirmour, H.P.

    2. Walia Auto Station, Paonta Sahib, District Sirmour, H.P.

    … … Respondents.

    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mrs. Saroj Sharma, Member.

    Hon’ble Mr. Chander Shekhar Sharma, Member.

    Whether approved for reporting? No

    For the Appellant: Mr. Mohinder Verma, Advocate.

    For the Respondent: None for respondent No.1.

    Mr. Peeyush Verma, Advocate,

    For respondent No.2.


    O R D E R

    Justice Arun Kumar Goel ( Retd.), President (Oral).

    1. This case was listed on 7.10.2009, when following order was passed.



    “7.10.2009. Present: Mr. Mohinder Verma, Advocate for the

    Appellant.


    Mr. Peeyush Verma, Advocate for

    Respondent No.2.
    Issue fresh notice to respondent No.1 for his personal appearance on 9.12.2009. In case he either fails to appear or does not make arrangement for hearing of this appeal, then it will be heard in his absence. Be listed on 9.12.2009.

    Alongwith notice copy of this order will be attached by the office”.



    2. It has been reported by the office that for today respondent No.1 is duly served. He is neither present in person nor he is represented by any one.



    3. Mr. Mohinder Verma, learned Counsel for the appellant raised only one ground in support of this appeal and urged that District Forum below fell into error while proceeding ex-parte against his client. This is not only contrary to law but is also opposed to principles of natural justice, equity and fair play as his client has been condemned unheard to its disadvantage behind his back without affording opportunity of being heard to it. In this behalf Mr. Verma drew our attention to the complaint filed by respondent No.1 and submitted that the address given of his client is, “2. Tata Motors Ltd., Chandigarh through its Manager”. Looking to the location of the Chandigarh city, we are constrained to observe that the District Forum below acted in a perfunctory manner unknown to law. Before issuing notice, respondent No.1 should have been directed to file complete and correct address of the appellant.

    In view of the above facts, we are of the view that without going into the merits of the pleas raised by the appellant in the grounds of appeal, ex-parte order dated 5.11.2008 in Consumer Complaint No.70/2008 passed by District Forum below needs to be set aside. Ordered accordingly. Consequently while remanding the complaint, the same is ordered to be restored to its original number and date to the stage before proceeding ex-parte against the appellant as well as respondent No.2 in this appeal. Since appellant as well as respondent No.2 are duly represented, they are directed to appear before District Forum at Nahan during next circuit on 21.1.2010 for which date, notice will only be issued by the District Forum below on receipt of this file to Shri M.K. Jain, advocate, by whom this complaint was filed. For all intents and purposes, it will be good service of respondent No.1-Sidharath Walia, complainant before District Forum below. In case learned Counsel fails to appear and/or does not accept the notice, District Forum below shall proceed further to deal with the matter in accordance with law.

    All interim orders passed from time to time in this appeal shall stand vacated forthwith.


    Learned Counsel present have undertaken to collect copy of this order free of cost as per rules from the Court Secretary and office is directed to send the same in the like manner to respondent No.1. Entire deposited amount by the appellant with up-to-date interest accrued on it will be remitted by the office to the appellant.
  • adv.singhadv.singh Senior Member
    edited January 2010
    FA.No.264/2007 AGAINST C.D.No.265/2006 DISTRICT FORUM, GUNTUR.

    Between:

    1. M/s.Lakshmi Motors

    Rep. by its Managing Partner

    Mr.Pamulapati Rajesh, S/o.Raveendra Babu

    Plot No.319, Autonagar, Guntur.

    2. M/s.Tata Motors Limited,

    II floor, Surya Towers, ‘C’ Block

    S.P.Road, Secunderabad-500 003.



    3. M/s.Tata Motors Limited

    8th floor, Centre No.1, World Trade Centre

    Cuffe Parade, Mumbai-400 005



    (No.2 and 3 represented by its Senior

    Manager (Customer support)

    Mr.M.Venkat Reddy) Appellants/
    Opp.parties 1 to 3
    And

    M/s.Ramanjaneya Traders,

    Represented by its Partner,

    Mr.Vanukuri Surya Reddy, S/o.Seshi

    Reddy, D.No.24-2-47, Charlaparlavari

    Street, Patnam Bazar, Guntur-522 003. Respondent/

    Complainant.



    Counsel for the Appellant: M/s.Ms.Shireen Sethna Baria



    Counsel for the Respondent:-Mr.A.Rajendra Babu



    QUORUM: SMT.M.SHREESHA, MEMBER

    &

    SRI K.SATYANAND, MEMBER



    FRIDAY, THE EIGHTEENTH DAY OF DECEMBER,

    TWO THOUSAND NINE



    (Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
    ***



    This is an appeal filed by the opposite parties before the District Forum assailing the order passed by it in C.D.No.265/2006.

    The facts that led to filing this appeal are as follows:

    The complainant purchased a Tata Indica Motor car on 29-4-2005 with chasis No.600121BZUP28701 and engine No.4751D105BUZP27701 from the second opposite party and took its delivery through 1st opposite party and the vehicle was registered under No.AP07AB8999. The 2nd opposite party promised the complainant prompt service through 1st opposite party. The complainant submitted that after running 4 to 5 thousand KMs, there was deterioration in Engine oil position resulting in emission of huge and heavy smoke through silencer besides jerk of the vehicle. At the time of giving the vehicle for 1st service to the 1st opposite party the complainant noticed fall in Engine oil level by ½ liter and the concerned authorities also noticed the emission of heavy smoke from the silencer while running the vehicle. The complainant approached 1st opposite party many times but 1st opposite prty gave evasive replies without taking due care to rectify the defect and directed the complainant to approach 2nd and 3rd opposite parties to rectify the said defect. The complainant approached the 1st opposite party on 6-9-2006 and handed over the vehicle with meter reading at 38526 km demanding rectification of the defect for which the opposite party replied that it was common for all vehicles. The complainant, therefore, got issued legal notice dated 7-9-2006 to all opposite parties to rectify the said defect for which they failed to reply. Hence the complaint filed the complaint

    Opposite party No.1 filed version stating that the vehicle was actually purchased from opposite party No.2 at Hyderabad manufactured by opposite party No.3 at Mumbai and delivery was given by opposite party No.1 and hence it had no liability for performance of the vehicle etc. It was stated that the vehicle in question was purchased for commercial purpose and therefore the complaint was liable to be rejected outright on these grounds only. It stated that as a servicing agency its duty was to check the vehicle as and when it was sent to garage. On 6-9-2006 the complainant handed over the vehicle to it for rectification and it found 200 ML engine oil deteriorated as per actual quantity of engine oil when the meter reading was recorded at 38526 KM. and submitted that they were attending to the necessary rectifications as and when the vehicle was sent to it and referred to various services effected to the vehicle but in 11th servicing it was endorsed that the complaint not rectified. It further stated had there been any inherent defects in the engine and that engine was in bore condition etc., the complainant could not have obtained Pollution certificate and emission of smoke could be due to adulteration in the diesel and also whenever there had been any loose contact in speedometer and prayed for dismissal of the complaint against it.

    2nd and 3rd opposite parties filed a common version stating that the complaint was not maintainable as the complainant cannot be termed as a consumer U/s.2(1)(i) of the Consumer Protection Act, 1986. They further asserted that even admitting there were defects, which could be rectified, it was not proper for the complainant to take a plea for refund of price or replacement of the vehicle as the complainant extensively used the vehicle for more than 38,000 Kms. And hence had no ground to seek replacement of the vehicle. Moreover, the terms of warrantee did not provide for such replacement and that clause 2 of the terms and conditions restricted the liability of opposite party to repairing or replacing free of charge such parts of the vehicle which in the opinion of the opposite parties are defective. They relied on the decision of Hon’ble Supreme Court in Maruthi Udyog Limited v. Susheel Kumar Gabgotra and prayed for dismissal of the complaint.

    On a consideration of the evidence adduced on behalf of both sides, the District Forum gave findings to the effect that the request of the complainant for the replacement of the vehicle or refund of the cost in lieu thereof was absolutely unreasonable in as much as the vehicle was put to extensive use by the complainant covering 38,000 KM. But at the same time held points number 1 and 2 framed by it in favour of the complainant having the effect of upholding the maintainability and identifying the deficiency in service on the part of the opposite parties. In conformity with the said finding, the District Forum granted compensation of Rs.50,000/- for mental agony caused to him due to unsatisfactory performance of the vehicle within the warranty period.

    Aggrieved by the said order, the opposite parties preferred this appeal mainly contending that the District Forum ought not to have upheld the maintainability as the vehicle was acquired in the name of the firm obviously for commercial purpose which knocks down the basis for characterizing the complainant as a consumer who alone can maintain a consumer dispute before the Forum under Consumer Protection Act, 1986. The appellants also urged that in the absence of any evidence to substantiate the finding of deficiency of service against the appellants particularly when there was no evidence proving allegations of excess engine oil consumption etc., the award of compensation was unjustified. The Forum failed to see that there was no pending problem in the vehicle they added. The observation of the District Forum that “when the complainant feels that the service rendered by 1st opposite party is not up to the mark, he is entitled to get it repaired at any place of his choice, and could have claimed reimbursement thereof from the opposite parties, within the warranty period only” was untenable.

    Both sides filed written arguments

    The points for consideration are:

    i) Whether the District Forum is justified in granting the relief of Rs.50,000/- etc., as it did?

    ii) Whether there are any infirmities in the order of the District Forum calling for interference by this Commission?

    In disposing of this appeal, it is essential in the first instance to appraise ourselves with the prayer in the complaint. The elements in prayer are:

    i) Rs.5,00,000/- towards loss of the car or replacement of the car

    ii) Rs.10,000/- towards compensation for the damages caused to the complainant including mental agony, pain and sufferings besides Rs.1,000/- towards costs of the notice and Rs.25,000/- towards advocate’s fees.

    Even while giving a categorical finding to the effect that the complainant was not entitled to either replacement of the car by a new car or the value of the car in question, it granted compensation to a tune of Rs.50,000/- that too solely for mental agony. What all the complainant sought was only an amount of Rs.10,000/-for damages including mental agony, pain and suffering etc., The costs of the notice and the advocate’s fee are peripheral in their nature. They follow only when the event as a whole turns out to be in favour of the complainant. In other words, the costs follow the event. Coming to the award of Rs.50,000/- by way of compensation for mental agony caused to him due to unsatisfactory performance of the vehicle suffers from two infirmities. The first and foremost is it is an amount that far exceeded the amount that he sought in the prayer. The other glaring infirmity is the award of compensation is always by way of consequential relief while granting main relief. In the present case, the main relief sought is the replacement of the car or the payment of the amount he paid towards the price of the car. The District Forum rejected the above said main relief. The complainant did not prefer any appeal on his own questioning that rejection. Therefore, in these circumstances a situation emerges wherein this Commission is given to examine the question when the main relief is rejected whether it is open to the adjudicating body to give a consequential relief. To reiterate, the proposition that compensation for mental agony cannot but be anything else, than a relief consequential or concomitant to the main relief. The very concept of consequential relief presupposes the main relief having been granted. Thus the relief granted by the District Forum in favour of the complainant turned out to be without a basis. The mere declaration without any reasoning that there was deficiency in service is not sufficient to give the consequential relief straight away bypassing the finding in relation to the requisite condition precedent for granting consequential relief.

    Apart from this infirmity even on merits, the District Forum did not address properly with reference to the evidence tendered by either side, if the complainant could make out any case of deficiency in service by tendering proper evidence. The complainant relied upon exhibits A1 to A10. None of these documents disclosed the defects in the car that justify the extreme relief of replacement of the car and in the alternative the refund of the price of the car. On the other hand, the opposite parties filed Exs.B1 to B13 of which Ex.B3 to B13 where the job cards that came to be issued from time to time in the context of the periodical services promised and every job card is found recording satisfaction of the consumer after attending to the routine defects pointed out. In any view of the matter, the very repudiation of the request for replacement or refund of the money by the District Forum amounts by implication to holding that there was neither manufacturing defect nor any grave defect that would call for replacement of the car or return of the money value of the car. The complainant, however, tried to place complete reliance upon the Commissioner’s report to say that the car was defective and therefore he was entitled to get the relief that was granted to him. The Commissioner executed the warrant of commission with the help of a mechanic who no doubt made some observations as relating to excessive smoke etc. But the fact that the complainant went on using the car proves by implication that he could not have done so without the clearance by the pollution control authorities of motor vehicles by issuing certificates. The mere self serving testimony by the complainant that the police used to often stop him on account of the heavy smoke coming out of the car cannot be readily accepted in the absence of any police record in the wake of such action by the police. Therefore, the fact that the complainant suffered due to the effect especially emission of heavy smoke signifying the defect in the car cannot be accepted in the absence of any cogent evidence which is not difficult to gather if really any such situation existed. Thus the grant of relief by the District Forum is untenable.

    The next point upon which the appellants harped upon is that the vehicle was purchased for commercial purpose and so the complainant could not have characterized himself to be an eligible consumer to maintain this complaint. This ground is highly slippery due to cleavage of opinions. However, on facts it is not unreasonable to attach some force to this argument as after all the car in question was purchased by a partnership firm obviously to add to the efficacy of the firm to carry on its business by virtue of a car being a part of its infrastructure meant to advance the cause of its business.

    It is amply demonstrated in the foregoing discussion that the order of the District Forum suffers from incurable infirmities and cannot therefore be allowed to sustain.

    Accordingly the appeal is allowed reversing the order of the District Forum and consequently dismissing the complaint. There shall be no order as to costs in the circumstance of the case.
  • adv.singhadv.singh Senior Member
    edited February 2010
    C.C. Case No. 116/06

    Deepak Puri, aged about 35yrs

    S/o- Pramad Chand Puri,

    At/Po/Ps- Rairangpur, Word No-9,

    Dist.- Mayurbhanj ………………….Complainant

    -VRS-

    1. M/s PAL MOVERS PVT. LTD.

    Khan Nagar, N.H.-5, Balasore

    Phone- 06782309237, 9437017485, 9437031924

    2. M/s TATA MOTOR LTD.

    Service Division, Jamsedpur,831010( Jharkhand)

    3. M/s TATA MOTOR LTD.

    Customer Service, Commercial Vehicle.

    Lalbahadur Shastri Marg, Wagle Estate,

    Thane – 400504

    4. M/s TATA MOTOR FINANCE

    Bezzola Complex – 1st Floor,

    V.N. – Purav Marg, Chember,

    Mumbai – 400071

    5. M/s TATA MOTOR REGIONAL SALES OFFICE,

    At – Patrapada, N.H. No.-5,

    Bhubaneswar, 751002

    Dist – Khurda

    ……….. …..Opposite Parties

    Present:

    Sri H. K. Panigrahi, President

    Smt. Anupama Mohanta, Member

    Sri K.C. Nayak, Member



    Counsels:

    For the Complainant: Sri Kishore Chadra Mohanty and his Associates

    For The OPs: Sri Purnachandra Jena

    Date of hearing: 27.11.06

    Date of order: 08-12-09

    O R D E R

    Smt. Anupama Mohanta:-

    The complainant Sri Deepak Puri has instituted this dispute case u/s 12 of CP Act 1986 against OPs for deficiency in service on their part.

    In nutshell the case of the complainant is that he has purchased a TATA 207 DI (Pick up Van) bearing engine No. 497SP27BUZ816296 and chesis No. 374415PUZ909311 from the show room of OP No-1 (M/S PAL MOVERS PVT LTD) who is the authorized dealer of opposite party-2 M/s TATA MOTORS LTD. The complainant has purchased this vehicle on 28.2.05 and got delivered of this vehicle on the same day annexure 1 (b). The registration of the vehicle is OR-11E-0702. Opposite Party M/s TATA MOTOR FINANCE is the Financer, who financed for the above said vehicle Being a consumer the complainant purchased the above vehicle and uses it exclusively for the purpose of earning his livelyhood by means of self employment. The complainant alleges that after purchase, the vehicle was not working properly due to manufacturing defect of engine, which defect of the engine could not be found in usual course of inspection by engineers of the authorized service centre. Therefore complainant approached OP No.1 and 2 within warranty period (as per Owner Manual and Service Book) to get the pickup van replace or refund the amount (Rs. 4,04,002/-) paid by him. Further the complainant alleges that due to manufacturing defect of the engine, the vehicle was detained most of the times in the authorized service centre for repair. For such detention of the vehicle in the authorized service centre , the complainant was deprived of using the vehicle and to derive income out of the use of the vehicle and suffered from financial crisies to repay the monthly installment to OP financer. Further alleges that due to repeated repair of engine of vehicle by paying the cost of repair within warranty period repeatedly caused mental agony and harassment and complainant therefore filed this complaint and seeking direction to OPs No.-1,2&3 to replace the said vehicle, i.e. 207 DIPICKUPVAN with PS(CLB) or to refund the amount of Rs. 4,04,002/- which was paid by him to OPs No1 ,2 &3 towards the cost of the said vehicle alongwith interest at the rate of 12% till realization and to pay compensation towards damaged sustained by complainant to the tune of Rs. 3,00,000/- and Rs. 50,000/- towards cost of litigation.

    In response to the notice of the Forum OPs appeared though advocate and resisted the complaint and contested the claim. In written Version they challenging that complainant is not a consumer as he has purchased the above said vehicle for commercial purpose and complaint is not maintainable. Only Mumbai court has Jurisdiction to entertain the case and there is no manufacturing defect in the vehicle. OPs have admitted the selling of vehicle and denied the allegation of detention of vehicle in the service centre most of the times. OPs further stated that, complainant only reported to OP No.-1 on dt. 09-03-05 for free service after covering 217 km at run and thereafter for 2nd time on dt. 30-09-05 coverage of 29,509Km with a complaint of high engine oil consumption and oil leakage from cylinder head. But OPs mentioned in their written version that after verification they did not find the manufacturing defect. The OPs averred the engine of the vehicle was repaired and delivered on Dt. 05-10-05 after necessary rectification and also pointed out that due to rough use, poor maintenance of the vehicle and non observation of guidelines of the operation of service book, the engine has failed, but it was not due to any manufacturing defect. According to OPs they have promptly serviced / repaired under guidelines of warranty policy. Further. OPs submitted that complainant is a defaulter and has failed to pay installment therefore have raised some frivolous grounds to avoid the repossession of vehicle as such OPs pray to reject the complaint.

    The complainant relies on the following documents in support of his claim.

    a) Xerox copy of sale invoice Annexure-1(a)

    b) Xerox copy of vehicle delivery

    receipt (VDR) Annexure-1(b)

    c) Xerox copy of Loan cum

    Hypothecation agreement Annexure-1(c )

    d) Particular of vehicle & Loan Annexure-1(d)

    e) Xerox copy of the RC Book Annexure-1(e)

    f) Xerox copy of the case memo

    of authorized dealer Pal Movers

    Pvt. Ltd. Annexure-1(f)

    g) Xerox copy of the representation Annexure-1(g)

    h) Xerox copy of reply of

    Pal Movers Pvt. Ltd. As to

    the representation of the

    complainant Annexure-1(h)

    j) Xerox copy of owners manual

    & service books as to the

    chapters of warranty and

    emission warranty Annexure-1(j)



    On the other hand Ops have relied the following documents in support of their written version.

    1. Xerox copy of the retail invoice (cash)

    of Pal Movers Pvt. Ltd. Annexure-1

    Xerox copy of Bill No.- 399/05-06

    dt. 08-10-05 Annexure-1(a)

    2. Xerox copy of promissory note Annexure-2

    3. Xerox copy of Loan-cum-

    Hypothecation Agreement, Xerox Copy

    of Particular of Vehicle and Loan Annexure-3

    Heard the learned counsels for both the parties. Perused the complaint petition, written version and the documents filed by them. Case record shows that none of the parties have filed evidence affidavit. In this instant case the complainant has purchased the vehicle and OP-1 has issued him the sale invoice vide Annexure 1(a) , consideration money has been paid by the complainant and same is admitted by OPs. By getting the loan amount complainant has purchased the above said vehicle for commercial use in order to give him self employment. In this purpose we have placed the decision passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, as reported in CTJ October 2006 Volume 14, No. X, page 996 in the case East India Construction Company Ltd. Vrs Mordern Consultancy services and others where National Commission states that “Consumer – Commercial Purpose – Consumer Protection Act 1986 – Section 2 (1) (d) – Admittedly the complainant engaged in construction business purchased the machine for commercial purpose – However considering that defects in the machine occurred during its warranty period, the complainant could move consumer forum for relief as a consumer”. In view of the above decision undisputedly complainant is a consumer under section 2(1)(d)(II) of CP Act. As the complaint is a consumer under section 2 (1)(d)(II) of CP Act and cause of action (defect) has arisen within warranty period after purchase of the vehicle, Hence forum has jurisdiction to entertain the dispute.

    Now the question is to decided whether the OPs are deficient in rendering service to the complainant.

    From the above and perusal of the complaint petition written version and document we find that allegation of complainant is that due to manufacturing defect of engine, the said vehicle was detained most of the times in authorized service centre for repair, and due to repeated repair of engine of vehicle within warranty period by paying the cost of repair caused mental agony and harassment. But it has not been disclosed by complainant on which date defect in engine was detected and what was the nature of defect and how many days the vehicle was detained in the service centre of authorized dealer OP No-1 for repair and how many times he repaired the engine for defect with in warranty period, and how many rupees he has paid for repeated repair? But OPs in written version mentioned that only two times complainant has reported to the work shed on dt. 09-03-05 for first free service after covering of 217 Km at run and second time after coverage of 29,509Km on 30-09-05 (after seven months of purchase) with a complaint of high engine oil consumption and oil leakage from cylinder head and also OPs repaired the engine and delivered on 05-10-05. The above pleas of OPs are not controverted by complainant by filing affidavit or by oral evidence. On perusal of service book manual vide annexure 1(j) it is found that warranty was given for the engine for three years from the date of sale of the vehicle or 3,00,000 Km of it running which ever occurring earlier. The warranty for the rest of the vehicle shall be for 18 months from the date of sale. Annexure- 1(f), clearly reveals that OPs repaired the engine within warranty period and Annexure-1(a) of OP, indicates that OP-1 has received the bill charges, cost of the spare parts. These documents show that OP have repaired the engine, replaced some spare parts with cost. The complainant also paid the cost of the spare parts of Rs. 10,200/- even if in the warranty period including labour charges.

    Further there is absolutely no materials in the record to show that there was manufacturing defect in the engine of the vehicle and similar defect was detected in the vehicle again and again frequently from the date of purchase. In absence of any such material it can not definitely and conclusively be said that there was manufacturing defect in engine. In absence of the proof of the facts, there is manufacturing defect in the engine of the vehicle the complainant is not entitled to get refund of the consideration and replacement of the vehicle. But since it is found from the Annexure-1(f), 1(a) that OP No 1 and 2 are deficient in rendering the customer service by receiving the bill charges of spare parts within warranty period. Therefore complainant is entitled to other relief sought for by him. Hence order.

    O R D E R

    The complaint be and the same is partly allowed on contest against the OP No 1 & 2 and dismissed against others OP No-3, 4 and 5. The OP No. 1 & 2 are directed to refund the bill charges of spare parts Rs. 7,784/- (Seven thousand seven hundred eighty four) only to the complainant and pay Rs 2,000/- to the complainant towards compensation for mental agony and harassment as well as to pay Rs. 1,000/- towards cost of litigation within one month from receipt of this order.

    Order pronounced in the open Forum on 8th day of December 2009 under my hand & seal of the forum.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Case No: CC/ 80/2008. Date of Filing (Original):29.04.2008.

    Date of Order: 17.12.2009

    Name of the Complainant(s) Name of the Opposite party/parties

    1.Snehasish Dutta, Tata Motors Ltd.,

    2. Debasis Dutta, Regional Office, 5th Floor, Apeejay House,

    Both sons of Manmohan Dutta, (Block-C), 15, Park Street,

    Vill.& P.O. Dakshin Khanda, Kolkata-700016.

    P.S. Salar, Dist. Murshidabad.



    PRESENT

    1. Shri G. M. Midhya - President

    2. Smt. P. Ali - Member

    3. Shri T. K. Biswas - Member

    JUDGMENT

    This case has been filed by the complainants u/S 12 of C.P. Act, 1986(as amended up to date). The fact of the case, in short, is that the petitioners purchased a Truck bearing No.WB-57/9259 from the OP Company on hire purchase system. As per terms and agreement, the OP agreed to pay the Insurance Premium on behalf of the complainants but the OP did not issue any insurance certificate after expiry of the period from 5.5.2006 to 4.5.2007. Consequently, the truck remained idle until 31.1.2008 when the insurance was made by the OP. As a result, the petitioners failed to pay instalments for three months and also they were deprived of earning Rs.4, 80,000.00 for not plying the vehicle. They also suffered loss of Rs.96, 000.00 in addition to former amount due to inaction and deficiency in service on the part of the OP. The petitioners requested the OP by serving notice through Advocate to pay Rs.5, 40,000.00 after adjusting the defaults of instalments but in vain. Hence, this case.



    They prayed for Rs.5, 40,000.00 on account of loss and for Rs.60, 000.00 as compensation on account of mental agony and legal expenses etc.



    The OP, Tata Motors Limited filed written version and contested the case. At the very outset the OP challenged the mentainabity of the case and it has been further averred in the written version that this Ld. Forum has got no jurisdiction to entertain and try this case. Secondly, it has been contended that in view of loan agreement executed between the petitioners and the OP, the complainants were bound to go on paying instalments regularly to clear up the dues but they were found defaulters. However, they were asked to pay their dues both in respect of instalments and insurance but they refused. The allegation of loss suffered by the petitioners is false and baseless. So, the case is liable to be dismissed with cost.



    We have perused the pleadings of the parties and heard Ld. Advocates appearing on behalf of the contending parties. Ld. Lawyer for the OP emphasizes on the point of lack of jurisdiction of this Forum to entertain and try this case. His main contention was that the case had not been filed after complying with the provisions of Sec.11 (2)(a). Moreover, as per terms and conditions of the loan agreement, all disputes arisen between the parties shall be within the jurisdiction of the courts at Mumbai for settlement. Besides that, there was an arbitration clause in the agreement with stipulation that any dispute arising between the parties shall be referred to Arbitration for settlement. So, according to Ld. Lawyer for the OP, this case is liable to be rejected summarily in view of procedural defect.



    Ld. Lawyer for the complainants in his turn argued that personal covenant by parties cannot either confer or oust jurisdiction of a court which is vested to it by the statute. That apart, the OP has failed to file the Arbitration Clause for the agreement. The complainants have rightly filed this case in this Forum because their abode and business are within the local limits.



    After hearing the above submissions we are of the view, since the OP cannot bring the copy of agreement containing the alleged arbitration clause as argued on that scope fails to understand. However, a patient loophole of this case cannot get escaped from our sight. The complainants filed this case complaining about negligence and deficiency in service by Tata Motors Limited, Regional Office, 5th Floor, Apeejay House (Block C), 15 Park Street, Kolkata- 700016. The OP company has its office at Kolkata and obviously the booking was made there also. The agreement and the transaction have also been carried out by the parties in Kolkata . There is no scope of denial in this matter in the complaint; rather it is silent about where the cause of action arose fully or in part. There is no evidence on record that the OP had any branch office in the district of Murshidabad for carrying on business. Also it has not been pleaded or established that the OP Company or any of its authorized agent ever personally works for gain within the jurisdiction of this Forum.

    It has been held by Their Lordships in (1996) I CPJ 233(NC) that no District Forum can assume jurisdiction solely on the ground that the complainant resides within its jurisdiction. Further more, there has been a clear direction by Their Lordships in AIR(1986) Ori, 136 that if the court finds that it has no territorial jurisdiction, it should not decide other matters.



    Under the circumstances as above, this Forum cannot have jurisdiction to entertain and try this case. The petitioner should institute this case in the Forum of appropriate jurisdiction. We need not go to consider the other grounds of defence resorted to in the written version of OP.

    Hence,

    O R D E R E D

    That Consumer Complaint No. 80/2008 be and the same is dismissed on contest for want of jurisdiction. Considering the circumstances no order as to cost is passed.

    The case is thus disposed of.

    Dictated and corrected by us.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Complaint Case No : 97 of 2008

    Date of Institution : 25.01.2008

    Date of Decision : 16.12.2009

    M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its Branch Office at 182/60, Industrial Area, Phase-I, Chandigarh.



    ……Complainant
    V E R S U S

    1] TATA Motors, Marketing & Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai – 400005.

    2] TATA Motors Limited, Commercial Vehicle Division, Jeevan Tara Building, 5, Sansad Marg, New Delhi – 110001.

    3] Joshi Auto Zone Pvt. Ltd., through its owner 84-85, Industrial Area, Phase-II, Chandigarh.

    .…..Opposite Parties

    CORAM: SH.LAKSHMAN SHARMA PRESIDENT

    SH.ASHOK RAJ BHANDARI MEMBER


    PRESENT: Sh.Parveen Kataria, Adv. for the Complainant.

    Sh.P.K. Kukreja, Adv. for OP No. 1 & 2.

    Sh.Rajesh Verma, Adv. for OP No.3.





    PER ASHOK RAJ BHANDARI, MEMBER



    Concisely put, the Complainant had purchased TATA Indigo (XL Classic) DiCOR Diesel Car, being manufactured by OP No.1 & 2, from OP No. 3, on 14.8.2007, for a total consideration of Rs.5,99,940/- plus insurance charges of Rs.17,820/-. As per terms & conditions, supplied with car in the form of Owner’s Manual & service Book, the warranty of car and parts thereof manufactured by OP No. 1 & 2 was for 18 months from the date of sale of the car, irrespective of the distance covered. On the recommendation of OPs, he even got the extended warranty for a period of 4 years by paying the requisite amount of Rs.3000/- - Rs.4000/-. It was alleged that on 17.8.2007, Mr. Arvind Sharma – one of the partners of Complainant firm had gone to Dehra Dun and the car had done only 330 Kms, when it got heated up and was taken to Oberai Motors, Dehra Dun, an authorized workshop of TATA Motors. The car remained there for two days i.e. 17/8/07 and 18/8/07 , but they did not remove the defects and rather, temporarily repaired it, so that it can be taken back to Chandigarh. Copies of job card are at Annexure C-3 & C-4. Thereafter, the car was taken to OP No. 3, who repaired it on 20.8.2007, with the assurance that there would be no problem in future. But even after that, the car used to heat up after every 15-20 Kms, for which the car was taken to OP No. 3 for 2-3 times and each time, the same was repaired without giving any job card. It was averred that the car was again taken to OP No. 3 on 3.9.2007, 4.10.2007, 29.10.2007 for repairs. Some adjustments were made on 3.9.2007 and 4.10.2007, but as the car was again not working properly and the same problem of heating up was there, so major repairs were carried out on 29.10.2007. It was submitted that on 27.10.2007, when Mr. Arvind Sharma was driving the car, the engine suddenly heated up and ceased, due to which the car stopped in the middle of road and another car from behind hit the car and due to this, there was damage to the car. Copies of the job cards are at Annexure C-6 to C-8 respectively. Inspite of several visits, the defect still remained there and the engine used to heat up. It was also averred that on 12.11.2007, when Complainant was visiting Yamuna Nagar, again the same problem arose, due to which, the car was taken to Metro Motors, an other authorized workshop of TATA Motors. They also were unable to rectify the defect completely and changed some parts & removed one part i.e. thermal plug, which controls the temperature and gave it to Complainant and told him to visit OP No. 3 at Chandigarh as that part was not available with them. The car remained in the workshop upto 13.11.2007. He enquired from OP No. 3, as well as from Hind Motors another dealer of TATA Cars, but the defective part was not available. Due to the aforesaid defect, the Complainant could not use his car and mostly had to hire taxi for visiting various station in connection with his business purposes. When inspite of number of visits to OP No. 3 - authorized dealer, as well as authorized workshops, they failed to rectify the defects, a legal notice dated 17.11.2007 was served upon the OPs, followed by a reminder dated 17.12.2007, but the same bore no fruit. The Complainant cannot get the engine opened otherwise he would lose warranty, but there has been no solution to his problem by OPs. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to refund the cost of the car as also the insurance charges along with 12% interest and costs or replace the defective car with new car of the same model, along with costs, besides compensation of Rs.1.00 lakh for supplying the defective car, taxi charges, legal charges and on account of causing harassment to the Complainant.



    2] Notice of the complaint was sent to OPs seeking their version of the case.



    3] OPs No. 1 & 2, in their joint written statement, while admitting the factual matrix of the case, pleaded that the Complainant had purchased the vehicle in question from OP NO. 3 for earning profits and was not a consumer under the provisions of the Consumer Protection Act, 1986. It was pleaded that they had never recommended the Complainant to avail the extended warranty and had ever received any amount from the Complainant to that effect. Annexure C-3 & C-4, which were the job cards of M/s Oberai Motors, confirm the visits only and did not indicate that any repairs temporary or permanent were carried out. There was no problem of thermostat of the engine, as alleged and the OP No. 3 had handled the complaint of hose pipe of coolant, which was an independent part and could be easily replaced, if required, without effecting performance of the vehicle in question. There was no problem of heating up of the engine after coverage of 100 Kms or/and after coverage of 15-20 Kms. On 3.9.2007, the vehicle was taken to the Workshop of OP No. 3 after coverage of 1451 Kms and for availing the first labour free service. The vehicle was delivered back to the Complainant at 1.00 PM to the entire satisfaction of the Complainant. The Complainant discharged satisfaction note in favour of OP No. 3. On 4.10.2007, the Complainant sent his vehicle for checking of front wheel alignment after coverage of 3650 Kms. The vehicle was received by OP No. 3 at 11.52 AM and was returned to the Complainant at 1.00 PM to the entire satisfaction of the Complainant. Again on 29.10.2007, the vehicle was taken to OP No. 3 after coverage of 5244 Kms with complaint of leakage of coolant. The leakage of coolant problem was checked and removed. It was asserted that the Complainant was leveling false allegations that the vehicle went out of order and caused accident. In case of ceasing of engine, the defects could not be rectified within one day. The Complainant did not point out any complaint with regard to heating up of the vehicle. While pleading that M/s Metro Motors had only changed the Water Pump free of cost, it was denied that any thermal plug was removed and that the said part was not available with the Dealer OP No.3 and M/s Hind Motors. In any case, Annexure C-9 (of Metro Motors) is not admissible. There was no problem in the vehicle which the OP No. 3 was to rectify, as alleged in the complaint. While admitting the receipt of legal notice, it was submitted that the same was suitably replied to vide Annexure C-14. It is clarified that the vehicle was neither newly launched vehicle, nor was suffering from any of the manufacturing defects. The vehicle is defect free and the Complainant has not paid any of the alleged amount of Rs.18,000/- as being falsely claimed by the Complainant. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.



    4] OP No. 3 in its reply, admitted that the vehicle in question, was sold by it to the Complainant, subject to the conditions of warranty on the terms & conditions contained therein. The vehicle was in the perfect condition and the same was perfect merchantable automobile which was without any defect, as alleged in the complaint. It was submitted that the Complainant got the extended warranty for a period of four years on his own will and desire. Perusal of Annexure C-3 & C-4 would show that no job work or demand repairs have been mentioned in the job cards. The vehicle came to the Workshop of OP on 20.8.2007 and accordingly, the job card was opened up as per the demanded repairs. Contents of Annexure C-5 would show that the vehicle had come for normal running repairs of the vehicle and was attended to most efficiently and effectively, as per the demanded repairs of the job card, under the conditions of warranty. False allegations have been leveled by the Complainant with regard to the vehicle, in order to gain wrongfully and to harass the answering OP. It was admitted that the vehicle came to the Workshop on 3.9.2007, 4.10.2007 and 29.10.2007 and accordingly, job cards were opened and the vehicle was duly attended to under the conditions of warranty most efficiently and effectively. On all these occasions, the vehicle had come for normal running repairs and there was no manufacturing defect in the vehicle. While denying the receipt of legal notice, all other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.



    5] Parties led evidence in support of their contentions.



    6] We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1, 2 & 3. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-



    i] The basic facts of the case in respect of the Complainant having purchased TATA Indigo (XL Classic) DiCOR Diesel Car manufactured by OP No. 1 & 2 from OP No. 3 on 14.8.2007, for a total consideration of Rs.5,99,940/- with a warranty of 18 months from the date of sale of the Car and that the Complainant also got an extended warranty for a period of 4 years by paying additional amounts to OP No. 3, have all been admitted.



    ii] The only dispute between the parties i.e. Complainant on the one hand and OPs on the other has been that as per the Complainant, the Car in question right from the date of purchase, was having operational problems e.g. it was getting heated up when it had covered only 330 Kms. The car was repaired several times i.e. on 17.8.2007, 18.8.2007, 20.8.2007, but the problem of the car heating up after every 15-20 Kms could not be set right. Subsequently, the Car was taken to OP No. 3 again on 3.9.2007, 4.10.2007 and 29.10.2007, for repairs, whereupon, OP No. 3 made some adjustments and when the problem continued to persist, some major repairs were also carried out on 29.10.2007. As per the Complainant, on 27.10.2007, when the Car was being driven, the engine was suddenly heated up and got ceased, due to which the car stopped in the middle of the road and the same was also hit from behind by another car. The car suffered damage as a result of the accident. The same problem arose on 12.11.2007, when the Complainant was visiting Yamuna Nagar and thereafter, the car was taken to M/s Metro Motors – an authorized Workshop of TATA Motors, who were also unable to rectify the defect completely and only changed some parts and especially removed one part i.e. Thermal Plug, which controls the temperature. The Complainant was asked to visit OP No. 3 at Chandigarh, for getting the part replaced, as the said part was not available with Metro Motors. Finally, when the Car could not be repaired even on 13.11.2007 by OP No.3, the Complainant served a legal notice on the OPs on 17.11.2007, followed by reminder dated 17.12.2007. As per the Complainant, he could not even get the engine opened, otherwise, he will lose warranty altogether, which he even got extended upto 04 years.



    iii] The allegations of the Complainant have been denied by OP No. 1 and 2, saying that there was no problem with the thermostat of the engine, as alleged and OP No. 3 had only handled the complaint of hose pipe of coolant, which was an independent part and could be easily replaced, if required, without effecting performance of the vehicle in question. The OPs have further denied that there was any problem of heating up of the engine after coverage of only 15-20 Kms every time. The vehicle was taken to OP No. 3 after covering 1451 Kms for first free service and the same was returned to the Complainant to his entire satisfaction. The vehicle again came to the OP No.3 for checking of front wheel alignment after covering 3650 Kms. Again, needful was done by OP No.3. On 29.10.2007, the vehicle was taken to OP No. 3 after covering 5244 Kms with complaint of leakage of the coolant. The problem was removed immediately. It has further denied that M/s Metro Motors removed the thermal plug and that the same was not available with OP No. 3. As per this OP, M/s Metro Motors had only changed the water pump that too, free of cost and not removed or replaced the thermal plug.



    iv] On the same lines, OP No. 3 has also denied all the charges leveled by the Complainant, saying that the vehicle in question had come to OP No. 3 only for normal running repairs and was attended to most efficiently and effectively. It is admitted that the vehicle came to the Workshop of OP No. 3 on 3.9.2007, 4.10.2007 and 29.10.2007 and accordingly, Job Cards were opened and the vehicle was duly attended to under conditions of warranty. It has denied any deficiency of service on its part and prayed for dismissal of complaint.



    v] From above detailed analysis of the case and after examining the pleadings, the evidence tendered and other documents on record, it is quite clear that the basic dispute between the parties is with regard to the existence of a manufacturing defect on account of heating up of the engine after even a short drive. Since the parties in question had an entirely different perspective on the issue, it was felt that only an expert report could clinch the issue. Therefore, the request of the Complainant who prayed that the car be sent to some expert for expert opinion regarding existence of manufacturing defect in the car, the same was allowed on 16.4.2009 and the car was permitted to be sent to the Director, Punjab Engineering College, Chandigarh, with a request to appoint a Committee of Senior Automobile Engineers and submit their expert report as to whether there was any manufacturing defect in the car or not. The report dated 26.5.2009 from Head, Department of Mechanical Engineering Department, Punjab Engineering College, Chandigarh was placed on record on 29.5.2009. The relevant extract of the said report is reproduced as below:-



    “Please refer to your order dated 16.4.2009 received on 6.5.2009 by hand. The vehicle under question having Registration No. CH-04-A-9973, Engine No. 14D1COR05GSZW05338 and Chassis No. 609172GSZPA8157 and Model (Make) 1GOXLDICR Classic (INDIGO XL Classic) was inspected on 25.5.2009 at 11.00 AM by the Committee. The Car was test driven for 17 Km i.e. the reading before the test drive was at 25409 Km and after the test drive 25426 Km.



    During test drive and inspection, it was observed that the engine was heated up after it was driven beyond 10 Km and that too without the load of air- conditioner. The needle of the meter on the dash board was near the danger zone. The vehicle was stopped for ten minutes and again driven back to Punjab Engineering College, and the needle of meter was near the danger zone again.



    On enquiring from the Complainant, it was informed that the problem of heating up of the engine after driving through some distance is occurring from the next day of purchase of the vehicle.



    This problem is attributed to some defects in the engine which may be due to manufacturing defect, since there was no leakage of water/coolant, the required quantity of water/coolant is not reaching in the water jackets around the cylinder.”



    From the aforesaid report, as received from the Punjab Engineering College, Chandigarh, it is quite clear that the Car in question was definitely heating up after it was driven beyond 10 Kms and that too without the load of Air Conditioner. One can very well imagine as to what will be the fate of the car in case it carried the load of Air Conditioner as well. It is also confirmed in the report that there was no leakage of water/ coolant, but still the required quantity of the water/coolant was not reaching the water jackets around the cylinder, which is once again a major defect in the Engine Assembly of the Car, which is nothing short of a manufacturing defect, as the same could not be removed even during the period of two years by the OPs.



    vi] In the preliminary objections taken by the OPs in their written statement/reply, they have stated that the vehicle in question was being used for commercial purposes and, therefore, such a complaint cannot be entertained by the Forum. However, no proof or evidence has been tendered by the OPs in support of their averments. Further, there is already an affidavit on record submitted by Sh. Arvind Sharma, one of the Partners in the Company, stating that the said Car was purchased for the personal use of Partners of the Complainant Firm and it is not being used for any activity directly connected with the commercial purpose of earning profit. It is also not being used for hire, but only for the personal use of the Partners for visiting different places, friends and relatives. Therefore, the objections raised by the OPs in this regard are not tenable, as the Car in question was not being used for any commercial purpose for earning profit.



    vii] Another contention of the OPs in their written statement/reply has been that the car had gone to OP No. 3 only for running repairs and not for changing any major parts or carrying out any major repairs/ replacement of parts and certainly, not for change of thermostat; whereas, the Tax Invoice dated 21.8.2007, issued by OP No. 3, clearly shows the replacement of following parts/ components: -



    a] Gasket (Oil Pump) (TALBROS)

    b] Oil Sump Gasket – 1 Thk

    c] Other Item – 2

    d] Gasket Oil Pump

    e] Gasket Water Inlet Elbow

    f] Sump Gasket – Renew

    g] Thermostat Remove & Install – Renew Gasket

    h] R/R Oil Pump Strainer

    i] Cooling System Check for Leaks.



    viii] The above Tax Invoice clearly shows that OP No. 3 had undertaken major repairs and replacements in the car. It is another matter that the Complainant was not charged for these replacements as the car was under warranty. But, that does not show or prove that the car was not suffering from any major/manufacturing defect. Even in respect of the expert report given by the Head of the Mechanical Engineering Department, Punjab Engineering College, Chandigarh, the OPs could not find any fault with the same, except saying during arguments, that the Committee was required to inspect and open up the engine, identify the exact defect and only then make a report and that the Expert Report was not acceptable in the present shape and form and that the case be referred to some other Govt. approved Automobile Research Laboratory and further, the inspection and checking of the vehicle was done in the absence of an authorized representative of OPs. The report, however, shows that Dr. V.P. Singh, who is Head of the Mechanical Engineering Department, holds a Ph.D Degree in Mechanical Engineering. The second Member is Sh. Sushant Samir, who is Lecturer in the said Department and the third Member Sh. Gopal Dass, who belongs to the Mechanical Engineering Laboratory of the College. Therefore, the Committee Members were fully qualified and competent to inspect and drive the car for some distance, monitor and supervise its working and operation and then make a detailed report; that is precisely what has been done by the Committee. There are no reasons to disbelieve or doubt the veracity of the expert committee report from a reputed Institution like Punjab Engineering College, Chandigarh, which is again a Government Institution, fully funded and controlled by Government of India, through U.T. Administration, Chandigarh.



    ix] The OPs in support of their case, have cited certain judgments/authorities, which are as under:-



    a] Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & Ors., IV (2009) CPJ 27 (SC).



    b] Talagang Cooperative G/H Ltd. Vs. Vandana Sharma, IV (2009) CPJ 161 (NC).



    c] Swaraj Mazda Ltd. Vs. P.K. Chakkappore & Anr., II (2005) CPJ 72 (NC).



    d] Hind Motors (India) Ltd. Vs. Sh. Kushal Singh Thakur & Ors., Revision Petition No. 1163 of 2005, decided on 21.08.2009 (NC).



    The judgments/authorities quoted by the OPs in support of their case are not applicable to the present case, as the facts and circumstances of this complaint are quite different/distinct and can be clearly distinguished from the ones quoted in the said judgments. Therefore, even the judgments/ authorities quoted by the OPs could not be of any help to the OPs in the light of Expert Committee Report, which clearly brings out the manufacturing defect in the Car, which the OPs have failed to remove during the last 2 years or so and for which the Complainant had visited them numerous times, but with no positive results. Therefore, the existence of a manufacturing defect in the engine of the car stands proved, without even an iota of doubt.



    7] From the above detailed analysis of the entire case, it is our considered view that the present Complaint has a lot of merit, substance and weight and it richly deserves acceptance. Therefore, we accept the complaint and decide the same in favour of the Complainant and against the OPs.



    8] Keeping in view the above, the OPs, shall, jointly and severally, do the following:-



    i] Replace the old TATA Indigo (XL Classic) DiCOR Diesel Car (2007 Model) with a new one with the same/equivalent brand and latest model in that category on payment of depreciation charges by the Complainant to the extent of 10% of the total original consideration of the old car i.e. Rs.59,994/- (10% of Rs.5,99,940/-) to the OPs. The OPs shall also furnish a fresh warranty of 18 months for the new car from the date of supplying the said car to the Complainant. The Complainant shall return the old car, along with R.C. and other relevant papers to the OP, at the time of delivery of the new car to him.



    ii] The OPs shall pay a compensation of Rs.1,00,000/- to the Complainant for causing harassment, a lot of inconvenience and financial losses to the Complainant Company, on account of selling it a car, which had an inherent manufacturing defect from day one, thereby creating a bundle of problems for the Complainant firm and putting it to financial losses as well.



    iii] The OPs shall pay litigation costs of Rs.5000/- to the Complainant Company.



    9] The aforesaid order be complied with by the OPs within a period of six weeks from the date of receipt of the certified copy of the order, failing which, they shall pay the sum of Rs.1,00,000/- along with interest @18% per annum from the date of filing of present complaint i.e. 25.1.2008, till the date of realization, besides paying the cost of litigation at Rs.5,000/- and fully complying with the order as at (i) in the foregoings.



    10] Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Consumer Complaint No


    1315 of 2009

    Date of Institution

    11.09.2009

    Date of Decision

    10.12.2009


    Tarsem Lal Singla s/o late Sh. Gujjar Mal, aged 73 years, r/o # 179, Sector 15, Panchkula.

    ….…Complainant

    V E R S U S

    1] Hind Motors (India) Ltd., #15, Industrial Area, Phase I, Chandigarh, through its Manager.

    2] M/s Tata Motors Ltd., SCO No.170-171-172, 1st Floor, Sector 17-C, Chandigarh, through its Manager.

    3] M/s Tata Motors Ltd., SCO No.305-306, 3rd Floor, Signature Tower, South City, Gurgaon, through its Manager.

    ..…Opposite Parties



    CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

    SH.SIDDHESHWAR SHARMA MEMBER

    DR.(MRS) MADHU BEHL MEMBER



    Argued by: Sh. Pavinder Singh Bedi, Adv. for complainant.

    Sh. Gagan Aggarwal, Adv. for OP-1

    Sh. P.K. Kukreja, Adv. for OPs 2 & 3.



    PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

    Succinctly put, the complainant purchased an Indica Vista TDI Aqua car from the OP vide receipt dated 19.1.2009 for an amount of Rs.4,10,158/-. However, from day one its fuel gauge was not working properly as when actual quantity of diesel in the car was approximately 1-2 liters, the meter showed the tank to be either more than half or sometimes near about full due to which he had to face lot of mental trauma and agony as the car stopped in the middle number of times. He approached the OP on 29.1.2009 for rectification of the above defect and made approximately 22 visits thereafter but the problem could not be rectified. He also wrote letters to OPs 2 & 3 upon which on 18.8.2009 he received a call from OP-3 to bring the vehicle to OP-1 on 19.8.2009 on which date they replaced the fuel tank and fuel gauge but still the defect persisted. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

    2] In its written reply OP-1 denied that the complainant visited them on 28.1.2009. It has been submitted that the complainant for the first time visited and complained of fuel gauge on 11.4.2009 which was replaced. It has been denied that any defect was traced in the car and rather the complainant visited the answering OP on 20.8.2009, signed the satisfaction note and thereafter the job card dated 19.8.2009 was closed. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

    3] OPs 2 & 3 filed their separate written reply on similar lines as was filed by OP-1 and also prayed for dismissal of the complaint.

    4] Parties led evidence in support of their contentions.

    5] We have heard the ld.Counsel for the parties and have also perused the record including written arguments.



    6] It is argued by the ld.Counsel for OPs that the vehicle is being used for a commercial purpose and therefore, the Consumer Fora have no jurisdiction to entertain and try this complaint. In support of his contention, the OPs did not produce any document to suggest if the vehicle has been purchased and is being used for a commercial purpose. Annexure-A is the invoice vide which the vehicle was purchased by the complainant, his contention is that he is using it for his personal use. It, therefore, cannot be said if the vehicle is being used for commercial purpose.



    7] It is also argued by the ld.Counsel for the OPs No.1 & 2 that the vehicle was got repaired by the complainant from an unauthorized workshop and therefore, the warranty would become inoperative. He, however, could not produce any evidence to this effect. The allegation for getting the vehicle repaired from some unauthorized workshop has been denied by the complainant. In these circumstances, the OPs cannot escape from their liability.



    8] The ld.Counsel for the complainant has then referred to Annexure OP-1/3 wherein the complainant is alleged to have given his satisfaction over the repair of the fuel gauge and other defects. The ld.Counsel argued that in view of this satisfaction note recorded by the complainant, the complaint is liable to be dismissed. It may be mentioned that the defect pointed out by the complainant is that the fuel gauge does not give correct reading and it shows that the fuel tank is filled-up to half of its capacity with fuel when actually there is no fuel in it due to which the complainant had to face difficulties in the middle of the journey. The vehicle was taken to the workshop a number of times and was also taken on 19.8.2009. The fact as to whether fuel gauge had started giving correct reading could only be ascertained when the vehicle was driven, the fuel was exhausted and the fuel gauge did not show the quantity of the fuel being half of the fuel tank as before. While taking the delivery of the vehicle on 21.8.2009 itself, the correctness of the fuel gauge therefore could not be checked by the complainant. The ld.Counsel for the complainant argued that this satisfaction note was with respect to the service and not with respect to the accuracy of the fuel gauge. In view of the circumstances mentioned above, we also find merit in this contention. Annexure OP-1/3, therefore, cannot be taken into consideration for dismissing the complaint filed by the complainant.



    9] The vehicle was purchased on 19.1.2009 vide Annexure-A. The contention of the ld.Counsel for the complainant is that from the very beginning, the fuel gauge gives inaccurate reading as mentioned in the para above. It was taken to the OPs on 11.4.2009 vide Ann.D annexed with this complaint. It appears that the fuel filter cap and fuel gauge check were replaced. However, the same defect continued in the fuel gauge and the vehicle was again taken on 26.4.2009 vide Ann.E with the same problem. The repair details show that fuel tank unit was removed and refit. However, the problem could not be solved and the vehicle was again taken to the workshop on 17.7.2009 vide Ann.F. The repair details show that F.I.P. Solenoid Valve (Fuel Shut Off Value) was removed & installed. The problem, however, continued and the vehicle was again taken to the OPs on 22.7.2009 vide Ann.G. The OPs claimed to have removed and refit the fuel tank unit but with no relief. The vehicle was again taken on 28.7.2009 to the workshop regarding which Ann.H was prepared. This time the repair details recorded are :-replace instrument cluster. The vehicle, however, showed the same problem and was taken to the OPs on 19.8.2009 vide Ann.J and the repair details recorded was as R & R cable Harness Cabin. The contention of the complainant is that the problem continued without any relief upon which a notice Annexure-M was served on the OPs and when nothing was done, the present complaint was filed.



    10] It may be mentioned that fuel gauge is an important instrument in a car, which shows the quantity of fuel in the fuel tank. If it does not give correct reading, the owner of the car is bound to face harassment because there would not be any fuel to drive further, though the fuel gauge would be showing the fuel in the tank. The OPs have tried their level best but have not been able to remove this defect. The complainant claims to have taken the vehicle to the workshop of OPs at least 22 times out of which six job cards have been placed on the file. The taking of vehicle time & again to the workshop itself causes harassment to the owner, who instead of enjoying the luxury of the car, realizes that he had purchased headache and annoyance for him to take the vehicle to the workshop for repairs. We are, therefore, of the opinion that the OPs have been negligent in selling a vehicle to the complainant, which does not give proper reading of the fuel in the fuel tank. They have not been able to identify the problem, which may be much more than the fuel tank or fuel gauge itself.



    11] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to rectify the defect in the fuel gauge of the car in question to the entire satisfaction of the complainant within 15 days from the date of receipt of car in their workshop and to pay to the complainant Rs.10,000/- as compensation towards the harassment caused to him. If the defect is not removed within the aforesaid period, the OPs would be liable to replace the car with a brand new vehicle without charging anything extra from the complainant or to refund the total amount received from him within 60 days from the receipt of copy of the order along with interest @12% per annum from the date of order i.e. 10.12.2009 till the payment is made to the complainant. The OPs would also pay Rs.5000/- as cost of litigation.

    Certified copies of this order be sent to the parties free of charge. The file be consigned.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Complaint Case No : 748 of 2009

    Date of Institution : 22.05.2009

    Date of Decision : 01.12.2009


    Manish Oberoi son of Late Sh.M.L. Oberoi, Resident of H.No. 509, Sector 41-A, Chandigarh, now residing at Flat No. 304, Silver City Extension, Zirakpur, Mohali.

    ….…Complainant

    V E R S U S

    1] M/s Joshi Auto Zone (P) Ltd., 84-85, Indl. Area., Phase-II, Chandigarh.

    2] General Manager, M/s Joshi Auto Zone (P) Ltd., 84-85, Industrial Area, Phase-II, Chandigarh.

    3] TATA Motors, 26th Floor, World Trade Centre-1, Cuffee Parade, Colaba Mumbai.

    .…..Opposite Parties


    CORAM: SH.LAKSHMAN SHARMA PRESIDENT

    SH.ASHOK RAJ BHANDARI MEMBER


    PRESENT: Sh.Aman Behl, Adv. for the Complainant

    None for OPs. No.1 & 2.

    Sh.Gagan Aggarwal, Adv. for OP No.3.





    PER ASHOK RAJ BHANDARI, MEMBER



    Concisely put, the Complainant had purchased a TATA Indica V2 DLG car bearing Regn.No.CH-04-A-9878, Chassis No. 605121 JSZPC 8933 in September, 2007 from OP No. 1 for Rs.3,75,550/- (Annexure C-1) and had got the said car financed from State Bank of Patiala, Sector 8, Chandigarh, wherein it was duly hypothecated in favour of the Bank. It was alleged that since the very first day, he had noticed white smoke emitting out of the exhaust pipe of his car, which was categorically pointed out to OP No.1, who assured him that the same would be removed during first service of the car. Furthermore, he had also noticed seal leakage in the car, vibration when the car was at the speed of 60 Km/hr and noise of the car belt, which defects were duly brought to the notice of OPs during the first service, but even after first service the problem of emission of white smoke and vibration continued, which when pointed out to the OPs, the OPs assured him that these were post-service problems and would get removed in due course of time. It was further alleged that at the time of second service also, the Complainant again pointed out the said defects, but the defects were not removed by the OPs. In October, 2008 when he got the third service conducted in the workshop of OPs, he noticed an ‘Oil sign’, ‘check engine’ and ‘battery +-‘ sign on the car screen indicating that the car engine was not in proper working condition. He immediately informed the OPs about the same, upon which it was told that the said defects would be removed for which he had to leave his car for 3-4 days in the Workshop, which the Complainant did. Pursuant to which the OPs replaced the Assy. Turbo Charger (KP-35) of the car (under warranty) without any reason and the Complainant had to incur Rs.1,535/- towards the same. But even after replacement of the above component, the vibration sound still continued and the white smoke continued to emit from the car exhaust. Copy of the job card and the invoice receipt dated 6.11.2008 is at Annexure C-2 & C-3 respectively. It was also alleged that since the car did not function properly and gave lot of problem while starting as well as in running condition, he again informed the OPs clearly mentioning his grievances wherein the OPs again asked him to bring back the car to their Workshop so that the problem could be taken car. The OPs committed to him that the defects would be removed and the car would be available in running condition within 4-5 days. As per the directions of the OPs, he took the car to the workshop and left it there. After 5 days, when he contacted the OPs, he was informed that the car was being repaired and that it would take another 7 days. After 7 days, when he again contacted the OPs, he was again assured that his car would take more time since there were certain technical defects in the machinery. During all this period, he had to compulsorily hire pre-paid taxis for his business tours to New Delhi and elsewhere and also could not take his family for marriages, outstation trips and holidays etc. When after 3 weeks, he did not receive his car, he visited the workshop and to his utter surprise, his car was lying unattended. Having left with no other alternative, he even personally visited the OPs and requested them to expedite the repair since he was suffering in his business because of non-availability of his car in extreme cold conditions. Finally, on 29.12.2008, after number of requests, reminders, telephone calls and personal visits, OPs handed over the car to the Complainant. This was accompanied with a long invoice and the car engine was replaced (under warranty) by the OPs. The Complainant had to agonizingly bear the amount of Rs.1,118/- owing to unnecessary billing by the OPs. A copy of the invoice receipt dated 29.12.2008 is Annexure C-4. It was further alleged that even after this, the defects were not removed and the problems in the car got further aggravated. He again took the matter with the OPs, but they blatantly refused to render any service saying that they had changed the engine of the car and the car was perfectly all right and in working condition. A legal notice dated 7.1.2009 (Annexure C-5) was also served upon the OPs, but to no avail. Hence this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.



    2] Notice of the complaint was sent to OPs seeking their version of the case.



    3] OPs No. 1 & 2 in their joint reply, while admitting the factual matrix of the case, pleaded that the problems so mentioned by the Complainant were duly shown in the job card and there existed no problem, as alleged, so the rectification of the same does not arise. There was no problem of emission of white smoke and vibration. It was asserted that the sign of oil check engine, battery etc. would appear as and when the engine oil was emptied or oil was emptied due to the running of the vehicle. The vehicle was attended to vide Annexure C-2 & C-3 efficiently and effectively under the conditions of warranty to the most satisfaction of the Complainant and there existed no such problems, as agitated by the Complainant in the complaint. The vehicle had come for normal running repairs of the vehicle at 29539 Kms. It was denied that there was any problem of white smoke emanating from the car exhaust; the answering OPs had ever asked the Complainant to bring back the car to the Workshop and the Complainant left his car in the Workshop, as alleged. It was admitted that the vehicle came to the Workshop of the OPs at 31939 Kms as per job card dated 27.12.2008 (Annexure C-4) for normal running repairs of the vehicle and the same was attended to under the conditions of warranty and to the most satisfaction of the Complainant. It was also denied that the answering OPs had unnecessarily charged Rs.1,118/- as per invoice dated 27.12.2008. Whatever was applicable under the conditions of warranty, was replaced. There was no manufacturing defect in the vehicle or in the engine. The vehicle in question was a perfect merchantable automobile without any manufacturing defect. The engine could become defective due to the driving habit of the driver and the same was replaced under the conditions of warranty without admitting any manufacturing defect. While denying the receipt of legal notice, all other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.



    4] OP No. 3 in its reply pleaded that defects as alleged in the complaint were never pointed out to it at any time or at the time of first service of the car. The warranty shall not cover wear and tear and shall not apply to the normal maintenance services like oils and fluids changes, head lamps focusing, fastener retightening, wheel balancing, tyre rotation, adjustment of value clearance, fuel timing, ignition timing and consumables like bulbs, fuel filters and oil filters etc. It was pleaded that the Complainant had concealed the fact that the vehicle in question had met with a major accident in the month of February, 2008 and again, in the month of May, 2008, which was evidence from Job Card dated 11.2.2008 (Annexure R-3/1) and Job Card dated 29.5.2008 (Annexure R-3/2). The Complainant had not placed on file any expert opinion showing that the vehicle in question was bearing the defects as alleged in the complaint. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.



    5] Parties led evidence in support of their contentions.



    6] The learned Counsel for the OP No. 1 and 2 was present in the initial stages of the case, but on the date of the final arguments, he was not present and hence, the case was heard in his absence.





    7] We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainants / OP. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 3 (OP No. 1 & 2 being absent). As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-



    i] The basic facts of the case in respect of the Complainant having purchased a TATA Indica V2 DLG car bearing Regn.No.CH-04-A-9878, Chassis No. 605121 JSZPC 8933 in September, 2007 from OP No. 1 for Rs.3,75,550/- and that subsequently, the said car had gone to OP No. 1 for certain repairs and replacements against job cards placed on record, have all been admitted.



    ii] The only grievance of the Complainant against the OPs, especially OPs No. 1 & 2, has been that the car in question sold by OPs to him was defective from day one. He has alleged that white smoke was emitting out of the exhaust pipe of the car and also there was a problem of oil seal leakage in the car, in addition to the problem of vibration noise when the car was moving at the speed of 60 Km/hr. and finally, there was noise in the car belt. The Complainant says that all these defects were duly brought to the notice of the OPs during very first service, but even after three car services, the car had still defects, as he had noticed the ‘Oil sign’, ‘check engine’ and ‘battery +-‘ sign on the car screen, which meant that the car engine was not in proper working condition. All these defects continued to exist and could not be rectified by the OPs and ultimately, the OPs replaced the Assy. Turbo Charger of the car within the warranty period of 18 months i.e. on 04.11.2008 i.e. within a period of 14 months from the month of purchase of the car. The cost of the Assy. Turbo Charger (KP-35) was Rs.33,049.78P. This amount was not charged from the Complainant, because the car was within the warranty period. But even after the said replacement, the problem of vibration sound, as well as emission of white smoke continued (Annexures C-2 & C-3). Thereafter, the car was taken to the OPs again several times, but the defects in question were not removed, which resulted in a lot of inconvenience and financial losses to the Complainant.



    iii] All these allegations of the Complainant have been denied by the OPs saying that there is no problem of emission of white smoke and vibration sound. It is further asserted that the sign of oil check engine, battery etc. would appear only as and when the oil was short or battery is low. The vehicle in question had only come to them for normal repairs at 29539 Kms and later at 31939 Kms. As per Job Card dated 27.12.2008 (Annexure C-4), all the repairs were done to the entire satisfaction of the Complainant. The OPs have denied the existence of any type of manufacturing defect in the car. However, it has admitted that the engine could become defective due to driving habits of the driver and the same was placed under conditions of warranty without admitting any manufacturing defect and the car in question was a perfect merchantable automobile, without any manufacturing defect, whatsoever.



    iv] OP No.3 has also taken similar stand, as in the case of OP No. 1 & 2, saying that the warranty shall not cover wear and tear and shall not apply to the normal maintenance services like oils and fluids changes, head lamps, wheel balancing, tyre rotation, adjustment of value clearance, fuel and ignition timing and consumables like bulbs, fuel filters and oil filters etc. OP No. 3 has alleged that the Complainant had concealed some major facts about the case in that the car in question had met with major accidents twice in the month of February, 2008 and again, in the month of May, 2008, which is evidenced from Job cards dated 11.2.2008 (Annexure R-3/1) and Job card dated 29.5.2008 (Annexure R-3/2), which were not placed on record by the Complainant and lastly, the Complainant has not placed on record any expert opinion showing that the vehicle in question was having certain defects, as alleged in the complaint and especially, the manufacturing defect. All the pleadings made by the Complainant have been controverted by OP No.3 in their written statement/reply.



    v] A very close scrutiny of the facts and figures in the present case reveals that the main allegation of the Complainant against the OPs is that after the Complainant purchased a TATA Indica V2 DLG Car sometime in September, 2007, the car developed some major defects right from the beginning and despite several visits to the OPs in connection with servicing the car and removal of other defects, there has been no improvement in the functioning of the car and the same remains defective till date. In support of its case, the Complainant has made reference to job cards at Annexure C-2 to C-4. In Annexure C-2, the Complainant has made the complaint in respect of the following: -



    “Engine Oil Leakage, Wheel Alignment, Wheel Balancing, Belt Noise Alt., Diesel Filter rep., Washing etc.”



    Annexure C-3, which is the Tax Invoice dated 04.11.2008, shows that the OPs had replaced the Assy. Turbo Charger (KP-35) at a cost of Rs.33,049.78P, for which the Complainant has not been charged on account of the fact that the car in question was still in the warranty period. In addition to replacing the said part, which constitutes a major part of the car engine itself, some other minor repairs and change of oil etc. was also done. On the same lines, the job card at Annexure C-4, dated 27.12.2008, also indicates certain items, which are basically a part of the normal servicing of the car and some of the parts were also replaced without charging anything on account of the existence of the warranty period. One major part known as RECON INDIGO 475 TC BARE ENGINE costing Rs.27,794.67P, was again changed by the OPs free of cost and the Complainant had paid only a nominal sum of Rs.1119/- for other petty jobs. Earlier, on 04.11.2006, the Complainant had paid a sum of Rs.1535/-, again for certain small items.



    vi] The main plea of the Complainant in the whole case against the OPs has been that whereas the brand new car which he had purchased from the OPs was carrying a warranty of 18 months, starting with 19.09.2007, but the car developed major defects on 04.11.2008 i.e. within a period of less than 14 months, due to which a major part of the Engine Assy. had to be changed when the car had done 29539 Kms. and subsequently, in the next one month, another major component of the engine had to be replaced on 27.12.2008, when the car had done 31939 Kms. All this happened within a period of 15 months from the date of purchase of the car. Despite of these replacements and various car services done by the OPs, the car still remained defective, as it continued to emit white smoke and there was vibration noise when it was running at the speed of 60 km/hr. As per the Complainant, all this shows that the car in question had an inherent manufacturing defect, due to which it could not run defect free even for a period of 14 months from the date of its purchase; whereas, the warranty period was 18 months.



    vii] All the above allegations of the Complainant have been controverted and denied by the OPs by saying that there was no problem of emission of white smoke and vibration noise in the car. Further, the different signs of ‘Oil sign’, ‘check engine’ and ‘battery +-‘ etc. only appear when the engine oil was short or the battery was low and these problems being very small, were attended to promptly by the OPs. OP No. 1 & 2 further says that the car in question did come to them twice at 29539 Kms and 31939 Kms respectively and the same was attended to under the conditions of warranty to the entire satisfaction of the Complainant. For all the items repaired or replaced, covered by the warranty, no amount was charged from the Complainant and the Complainant had to pay some small amounts only against those items, which were not covered by the warranty or for the items, which were basically consumables.



    viii] OP No.3, who is the manufacturer of the car, in it reply, had brought out certain facts, which were not disclosed by the Complainant in his complaint. As per OP No. 3, the Complainant brought his car to the Workshop of OP No. 1 & 2 on 11.2.2008 and subsequently, on 29.5.2008. On both the occasions, the car had come to the OPs for accidental repairs, as a result of which, major accidental repairs were carried out by the OPs and the Complainant had to pay almost Rs.44,000/-, in which the major component each time was labour charges, which shows that the car had suffered major damage and needed very extensive repairs to make it fully functional. When the Complainant came to the OPs on 04.11.2008 and a major part of the Engine Assy. Known as Assy. Turbo Charger (KP-35) was replaced at a cost of Rs.33,050/-, the car had already met with an accident on an earlier date i.e. 11.2.2008. On the same lines, when the car came to the OPs on 27.12.2008, when another major part of the engine called RECON INDIGO 475 TC BARE ENGINE was replaced at a cost of Rs.27,795/-, which had already met with an accident for the second time on 29.05.2008. The contention of the OPs is that as per Clauses 6 & 7 of the terms and conditions of the warranty, which are quoted below, the warranty in question does not remain in operation in case of accident:-



    “6. This warranty shall not cover normal wear and tear or any inherent normal deterioration of the car or any of its parts arising from the actual usage of the car or any damage due to negligent or improper operation or storage of the car. This warranty shall not apply to normal maintenance services like oils and fluid changes, head lamps focusing, fastener retightening, wheel balancing, tyre rotation, adjustment of value clearance, fuel timing, ignition timing and consumables like bulbs, fuel filters and oil filters etc……….”



    “7. This warranty shall be null and void if the car is subjected to abnormal use such as rallying, racing or participation in any other competitive sport. This warranty shall not apply to any repair or replacements as a result of accident or collision.”



    Further, as per the OPs, as a matter of courtesy and gesture of goodwill, they replaced the major parts of the engine of the car, totally free of cost, although they were under no obligation to do so, as the car had already met with two accidents prior to changing the engine and these replacements had to be done only as a consequence of the accidents and not otherwise.



    ix] Another major issue raised by the Complainant against the OPs is in respect of inherent manufacturing defect in the Car from day one of its purchase on 19.9.2007. The Complainant has not produced any expert report from an Automobile Engineer or an approved/recognized Automobile Association, in support of his allegation. In the absence of either an expert report or a proper laboratory test, or an authenticated report from an approved/ recognized Automobile Association, it is not possible to prove that there is any manufacturing defect in the car. In support of its contention on the same point, OP No. 3 has quoted some evident authorities, which are as under: -



    “In the case of M/s E.I.D. Parry (India) Ltd. Vs. Baby Benjamin Thushara I (1992) CPJ 272 NC had observed that “…………..we are not satisfied that the above observations of the State Commission are correct. If the Closet was of sub-standard quality, then the defect could be proved only by laboratory test. In laboratory, it could be found if the material used in manufacture of the Closet in question was of sub-standard quality or not or it could with stand a weight upto 465 Kgs as claimed by the manufacturer before the State Commission. Without such a test, no conclusion can be reached about the quality of the material used in the manufacture of the disputed Closet. Therefore, the State Commission was not right in not sending the pieces of the broken Closet for laboratory analysis or test.”



    In the case of H.M.T. Limited V/s Jubeda Bee, (P) 2000 (1) Page 54, in which the Hon’ble M.P. SCDRC, Bhopal, has held as under:-



    “complaint filed by the Complainant against alleged defects in the Tractor purchased by the Complainant. Allowed by District Forum. On appeal, the Hon’ble SCDRC held that since no expert’s evidence adduced, therefore, manufacturing defect not established.”



    Apart from above said authorities quoted by the OPs, Section 13(1)(c) of the Consumer Protection Act, 1986, also further clarifies the matter as under:-



    “where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect……….”





    x] In view of the above said authorities, as well as Section 13(1)(c) of the Consumer Protection Act, 1986, the contention of the Complainant that the vehicle in question had an inherent manufacturing defect, does not hold water and cannot be accepted at its face value.



    8] As per the detailed discussions and thorough analysis of the entire case, we are of the considered view that the allegations of the Complainant against the OPs are baseless, devoid of merit and carry no weight whatsoever. Not only that, the Complainant has not been able to establish or prove any of the allegations leveled against the OPs, but also, he has tried to conceal certain major facts of the case, which, obviously, had an adverse bearing to him. The vehicle in question had met with accidents twice, resulting in the major repair and replacements & all these things were cleverly concealed by the Complainant and not disclosed in the present complaint, which means that the Complainant has not come to this Forum with clean hands. It is further quite clear that the replacement of the engine of the car was necessitated only on account of the accidents, which took place causing extensive damage to the car. Still, the OPs were gracious enough to replace the entire engine assembly free of cost, although it was not covered by the terms and conditions of the warranty, solely on the ground that the warranty period had not expired till then. It is also quite clear that the OPs were under no obligation to replace the engine with a new one free of cost, as it is not covered by the terms & conditions of the warranty, but still they did it. In view of these facts and circumstances, the present complaint deserves rejection. We, therefore, dismiss the same. However, the respective parties shall bear their own costs.



    9] Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.
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