FA  30/2011  against CC 86/2010  on the file of the District Consumer Forum, Ananthapur.

Between :

1. Head Car Product Group

Tata Motors Ltd.,

Passenger Car Business Unit

V Floor, One Forbes, Dr.V.B.Gandhi Marg

Mumbai – 400 001.

2. The Regional Manager,

Tata Motors, Passenger Car Business Unit

14^th floor, Canberra Block, UB City 24

Vittal Maliya Road

Bangalore – 560 001.                       .. Appellants/opposite parties 1& 2

And

01. Kalimisetty Suresh

S/o K.Ramaseshaiah

D.No.15-609

Kamalanagar,

Anantapur.     …                                Respondent no.1/Complainant.

02. The Managing Director

Prani Auto Plaza Pvt. Ltd.,

TOR Towers, Obulareddy Nagar

NH 7 Bypass,

Anantapur.

03. TATA Motors Finance Ltd

      Kurnool Branch

rep. by its authorized signatory

61/1/6A2, B.V.Regenta Plaza

Kallur Road, Beside Sreenivas Theatre

Kurnool – 518 002.

04.  Tata Motors Finance Ltd.,

rep. by its authorized signatory

Registered Office, Nanavati Mahlaya,

3^rd floor, 18 Homi Mody Street,

Mumbai – 400 001.   …                    Respondents/Opposite Parties.

Counsel for the Appellants            :           Sri V.V.S. N. Raju

Counsel for the Respondents       :           M/s. V. Gourisankara Rao  for R-1  

                                                                        R2, R3 and R4 served.

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Wednesday, the Second Day of January

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

****

01.       This is an appeal preferred by the opposite parties 1 & 2   as against the  orders dated 30.09.2010 in CC 86/2010  on the file of the District Consumer Forum, Ananthapur. For convenience sake, the parties as arrayed in the complaint are referred to as under :

02.  The brief facts of the complaint are that  the complainant purchased Nano LX car from the 4^th opposite party on 18-03-2010 which was manufactured by Ops 1 and 2 which has OP. 3 branch at Kurnool after payment of Rs.77,193/- in cash and remaining amount of Rs.1,40,000/- was paid through 5^th opposite party financer vide  letter dt.26-08-2009 vide Registration No. AP-02-AE-4257 on      06-04-2010. The  said car did not give assured mileage and there is manufacturing defect in the car in the said context so also defect in fuel gauge. In spite of repeated requests and correspondence, Ops 1 and 2 & 4 did not rectify the defects and hence the complaint claiming refund of Rs. .1,21,173/- along with interest on the said amount @ 24% p.a., to pay balance of amount to 5^th opposite party, which is yet to be realized by 5^th opposite party, who advanced loan towards purchase of car and to pay an amount of Rs.3,00,000/- towards compensation for mental agony alleged to have been  suffered by the complainant with costs of this complaint

03.       The 1^st opposite party   filed written statement   opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under:

on the complaint of the complainant about poor mileage necessary repairs were undertaken and that the complainant was requested to take delivery of the car and that the complainant himself took mileage sheet of the car and got the mileage as 20.35 KMPL prescribed by the Ops and that complainant did not produce any cogent report from authorized laboratory about poor mileage  and therefore his allegation of poor mileage has not been substantiated.   Ops are not responsible for the acts and omissions of the complainant. Ops 3 & 5 filed their counter and pleaded that the complainant cannot ask them to stop presetting of cheques towards his EMIs and that they are unconcerned  with Ops 1, 2 and 4 and the alleged dispute of the  complainant and Ops 1, 2 & 4 and that they are only financiers and as per agreement conditions the complainant has to pay EMIs regularly without any default and that the complainant did not quantity and assess his claim against Ops 3 & 5. The 4^th opposite party  pleaded that there was no poor mileage and that to defame the vehicle the complainant made false allegations and that required services were rendered to the vehicle and still the vehicle is lying in the compound wall of OP. 4  for which it is entitled for demurrage charges @ Rs.100/- per day and that in spite of repeated requests the complainant did not take his vehicle duck after his service and that there is no deficiency in service on the part of Ops and therefore prayed for dismissal of the complaint.

04.       Having heard both sides and considering the evidence on record, the District Forum allowed the complaint and directed OPs to and the opposite parties 1, 2 & 4 are jointly and severally liable to pay to the complainant a sum of Rs.2,08,346.00 towards cost of the car and also liable to pay Rs.10,000/- towards damages for mental agony with interest @ 12% p.a. on the said amounts from the date of complaint i.e. 23-06-2010 till the date of realization with costs of Rs.5,000/-. The said amounts shall be payable to the complainant within one month from the date of this order. The complaint against the opposite parties 3 & 5 is dismissed with costs of Rs.5,000/-.

05.       Feeling aggrieved with the said order the unsuccessful OPs  filed this appeal on several grounds and mainly contended that the District Forum did not consider the contentions raised by the Ops 1 & 2  and passed orders without there being any convincing and dependable evidence and that  did not follow due procedure with regard to the allegations made by the complainant against them and and that necessary repairs were undertaken by the concerned  but deliberately the vehicle was not taken by him from OP. 4  and that there is no expert’s opinion in favour of the complainant and that fuel consumption depends upon several factors and that the complainant did not establish his case for refund of the amount paid by him towards purchase of the car and that there is no deficiency in service on their part and prayed for dismissal of the complaint.

06.       Heard both sides   with reference to their   respective contentions in detail.

07.       Now the point for consideration is whether the order of the District Forum is sustainable ?

08.       There is no dispute that  complainant has purchased Tata Nano LX model Car manufactured by the opposite parties 1 & 2 from  4^th opposite party dealer on 18-03-2010 and that  the complainant had taken delivery of the said vehicle vide  Ex.A5 delivery challan and  that the opposite parties 3 & 5 are the financiers of the said vehicle.

09.       The main grievance of the complainant is that assured fuel consumption mileage was not given by the Car and thus there was a mechanical defect in the Car and that it was not rectified by the Ops 1,2 and 4  and hence he is entitled for refund of the amount paid towards consideration of the said car so also damages. Whereas the contention of  OP. 1 is that the complainant did not place any expert’s  opinion  showing that the car is suffering from manufacturing defect so also that he did not give assured mileage and therefore he is not entitled for the reliefs as prayed for.

10. As rightly contended by the Ops that poor mileage would be on account of several factors such as in proper use of the car, driving habits of the driver, road condition, tyre pressure, quality of fuel and clutch operations etc. and the complainant did not produce any evidence in the said context nor the District Forum appreciate the said contention of the contesting Ops  in its order under appeal. Further, in a decision reported in Maruti Udyog Limited Vs. Sushil  kumar Gagotra JT 2006 (4) SC 113 it was held that the manufacturer cannot be ordered to replace the car or its price merely because some defect appears.  The complainant did not mention in the complaint that third test has given 15.21 kmpl in the complaint.  The complainant did not produce any expert evidence of his own accord nor requested the District Forum to call for an expert report from an appropriate laboratory to substantiate the allegations of the manufacturing defects in the car and also to ascertain and examine the nature of the defects in the car. Therefore in the circumstances of the case, for want of dependable evidence, the order under appeal is not sustainable and hence the same is liable to be set aside and the case is necessary to be remitted back to the District Forum for fresh disposal according to law after giving opportunity to both sides keeping in view of the observations made by this Commission in the present order.

11.       In the result, the appeal is allowed setting aside the order of the District Forum and the case is remitted back to the District Forum for fresh disposal according to law after giving opportunity to both sides and also keeping in view of the observations made by this Commission in the present order.  The parties are directed to appear before the District Forum on 01.02.2012 without insisting any fresh notice.  The District Forum is directed to dispose of the matter as early as possible preferably within three months from the date of receipt of the order. There is no order as to costs in the appeal.

MEMBER                              MEMBER                                            DATED   : 02.01.2013