BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.51/2011 against C.C.No.347/2009 District Forum-I, Hyderabad.
Between
Sri N.R.Selvaraj, S/o.late Ramaswamy
Aged about 43 years, Occ:Service,
R/o.H.No.10-1-823/1, A.C.Guards,
Hyderabad. ..Appellant/
Complainant
And
1. M/s.Malik Cars, represented by Manager
(Passenger Car Dealer)
Opp:Taj Banjara, Indralok complex,
Road No.1, Banjara Hills,
Hyderabad-500 034.
2. M/s.Malik Cars, rep. by Manager,
(Authorised workshop of TATA Motors)
Passenger Car Dealer, 8-1-328/1, Shaikpet Nala
Opp:Laxminagar, Toli Chowki Road,
Hyderabad-5000 008.
3. M/s.TATA Motors, rep. by Manager,
2nd floor, surya Towers, C.Block, 104,
S.P.Road, Secunderabad-500 003.
4. M/s.TATA Motors, rep. by General Manager,
Marketing and Customers Support
Passenger Car Business Unit, 8th floor,
Centre No.1, World Trade Centre,
Cuffe Parade, Mumbai-400 005. Respondents/
O.Ps.
Counsel for the Appellant : M/s. M.Hari Babu
Counsel for the Respondents : M/s.A.Muralidhar Reddy-R1 & R2
M/s.V.V.S.N.Raju R3 and R4.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER,
FRIDAY, THE TWENTY SEVENTH DAY OF JULY,
TWO THOUSAND TWELVE
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.347/2009 on the file of District Forum-I, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased a TATA INDICA CAB DLE car from opposite party No.1 with chassis No.600137 BSZP25871 and registered as AP 13TV 0403 on 22-2-2007 for self employment by availing loan from M/s.TATA Motors Finance Ltd., and earning an income of Rs.20,000/- per month. The complainant submitted that he handed over the car to opposite party No.2 on 30-5-2008 for free servicing with meter reading as 18973 Kms and complained of starting trouble and general check up. The complainant submitted that O.P.2 issued a job card and promised that the vehicle would be delivered by 31-5-2008 and also sent an SMS to the complainant to take delivery of the vehicle. The complainant submitted that when he went to take delivery of the vehicle, opposite party No.2 informed some manufacturing defects and advised the complainant that the replacement of the defective parts with new ones is essential. The complainant submitted that the vehicle ran only for 18973 Kms. and is within the stipulated free service and therefore, opposite parties are bound to replace the parts. But opposite party No.2 estimated Rs.71,937/- for repairs and towards cost of spare parts to be replaced and suggested to claim the same from insurance company. The complainant submitted a claim to M/s.United India Co. Ltd., with whom the vehicle was insured but after due inspection, the insurance company issued a letter dated 09-6-2008 that the general and periodic maintenance is not covered and closed the claim. The complainant submitted that since manufacturing defects are detected by opposite party No.2, it is for the opposite parties to replace the vehicle with new one and since the vehicle was lying with the opposite parties since couple of months, the vehicle got damaged. The complainant submitted that since June, 2008, opposite party No.2 has neither replaced the spare parts with new ones as per warranty and is not delivering the vehicle for which the complainant is being subjected to financial loss. The complainant submitted that the financier issued a letter dated 15-10-2008 asking him to pay the dues. The complainant, therefore, got issued a legal notice to the opposite parties on 06-11-2008 for which opposite party No.4 on 18-11-2008 replied and requested the complainant to wait for some time to enable them to know their stand on the claim and opposite party No.2 replied on 28/11/2008 with false and baseless allegations. O.P.4 also by letter dated 04-12-2008 refused to take any responsibility which is clear deficiency in service. Hence the complaint for a direction to the opposite parties to replace the subject vehicle with a new one and pay Rs.20,000/- per month from June, 2008 till replacement and pay Rs.1,00,000/- towards mental agony and costs of Rs.10,000/-.
Opposite parties 1 and 2 filed counter resisting the complaint. They submitted that the vehicle does not have any warranty and it met with an accident when the Odometer reading is 1212 Kms and after purchase of vehicle on 23-6-2007, it was serviced for various accidental repairs and also stated that the vehicle met with an accident as per the owner’s manual and hence the warranty period does not exist for the later period. The extent of the accident is described in the service history which states that the front portion is damaged including radiator, air filters, stay rod bearing, mascot battery and engine and therefore the complainant has to get the vehicle repaired at his own cost. Opposite parties further stated that the complaints which came into light during the 4th free service of the vehicle at 18973 kms are a list of new repairs due to driving of the vehicle in mud water and rain water for long distance. Tiny pieces of soil entered the engine through the radiator or the exhaust pipe and within a span of 3 to 4 days dried up and created problems in running the engine. Opposite parties submitted that the complainant is silent as to how the said problem occurred when it was doing well on 25-6-2007 when it was serviced at 6938 kms. They further submitted that the repairs sought to be done are not manufacturing defects and that the complainant was informed to pay costs for replacement of the parts and he did not do so and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Opposite party No.3 was set exparte.
Opposite party No.4 filed counter resisting the complaint. It stated that the complainant had not shown any manufacturing defects and replacement of parts will be done only on payment as the vehicle previously met with an accident as per the owner’s manual and after accident, the warranty period is not covered. Opposite party No.4 submitted that after receipt of notice from the complainant they give a reply in detail and submitted that the complainant kept the vehicle in the garage of opposite party No.2 illegally and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A18 and the pleadings put forward, the District Forum dismissed the complaint without costs and gave liberty to the complainant to take back the vehicle within two weeks from opposite parties 1 and 2 by paying necessary charges if any for keeping the vehicle in their premises and in the event of failure, opposite parties 1 and 2 are at liberty to deal with the same after informing the financier of the subject vehicle.
Aggrieved by the said order, the complainant preferred this appeal.
It is the complainant’s case that he purchased a TATA indica Taxi on 22-2-2007 for self employment and obtained a loan from TATA Motors i.e. opposite party 3 and is paying an EMI of Rs.10,000/-. While so on 30-5-2008 with the meter reading at 18973 Kms., the complainant gave the vehicle to opposite party No.2 for fourth free servicing and opposite party No.2 promised to deliver the vehicle on 31-5-2008 but opposite party No.2 gave a bill for Rs.71937/- evidenced under Ex.A5. The complainant forwarded the claim to the insurance company who repudiated it on 9-6-2008 on the ground that periodic maintenance is not covered under the policy. It is the appellant/complainant’s case that the subject vehicle is having manufacturing defects and opposite party no.2 did not deliver the vehicle because of which he suffered financial loss and was not able to pay EMI and the financier vide Ex.A9, letter dated 15-10-2008 issued a notice to the complainant to pay the due amounts. The complainant got issued a legal notice on 06-11-2008 vide Ex.A10 to the opposite parties to replace the vehicle.
It is the case of opposite party No.2, dealer, that the complainant’s vehicle met with an accident and accidental repairs are not covered under warranty. It is also the case of opposite party No.2 that he had written a letter on 02-7-2008 to the complainant asking him to take away the subject vehicle or to give proper instructions about its repairs but the complainant did not choose to take the vehicle. Ex.A6 is the job card issued by opposite party No.2. It is the appellant/complainant’s case that the warranty is upto 18 months or upto 50,000/- kms whichever is earlier and it is the complainant’s case that when he brought the vehicle for the fourth free service on 30-5-2008, the meter reading was 18973 Kms. and therefore the vehicle is within warranty. The complainant’s contention that the vehicle has manufacturing defects is not substantiated by any expert opinion, job cards or by any other evidence. We rely on the decision of National Commission II 2004 CPJ 22 (NC) in EITCHER MOTORS LIMITED & ANR. v. PN.RANDIVE that when any parts of a vehicle or equipment is replaceable and rectifiable, it cannot be stated to be having an inherent manufacturing defect warranting replacement of the entire equipment/vehicle of refund of the value. In the instant case the complainant has not proved the existence of manufacturing defects warranting replacement of the entire vehicle. It is his only contention that opposite party no.2 has stated that there are manufacturing defects but this is also not supported by any material evidence. It is the case of opposite party No.2 that the vehicle met with an accident which is not substantiated by any documentary evidence and he only states that the fourth free service is at 18973 Kms. and that tiny pieces of soil entered the engine through the radiator and exhaust pipe which created problems in the running of the engine and this problem was not existing when the vehicle was serviced on 25-6-2007. Though manufacturing defect has not been proved, there is an admission of a problem with the engine and there is no evidence that this is because of an accident. Ex.A6 is the job card for the fourth free service and Ex.A5 is the estimate given by Malik Cars for Rs.71,938/-. Taking into consideration that the opposite party did not file any material evidence to establish their contention that the vehicle met with an accident and to reiterate, even in Ex.A14 dated 28-11-2008 there is no whisper of the subject vehicle having met with an accident or that the repairs are accidental repairs. Even while claiming insurance, the complainant never stated that they are accidental repairs. In the absence of any evidence on record that the vehicle met with an accident, we are of the considered view that the repairs fall within the warranty period and as estimated by opposite party No.2 at Rs.71,938/-, should be attended to by opposite party no.2 as the vehicle was within the warranty and the subject vehicle should be delivered to the vehicle within four weeks from the date of receipt of this order. Keeping in view the balance of equities and that the vehicle was purchased in 2007 for self employment purpose and also taking into consideration that the vehicle was given for repairs in the year 2008 i.e. three years has already lapsed, the opposite party should not collect any demurrage charges but attend to the repairs and return the vehicle to the complainant in a road worthy condition. Keeping in view the contributory negligence by the complainant of not responding to the notice given by opposite party No.2, we are not inclined to award any further compensation. The complainant ought to have responded to the notice and then taken necessary steps which he did not choose to do so. However we award costs of Rs.5,000/-.
In the result this appeal is allowed in part setting aside the order of the District Forum and directing opposite party No.2 not to collect any demurrage charges but attend to the repairs and return the vehicle to the complainant in a road worthy condition together with costs of Rs.5,000/- within four weeks from the date of receipt of this order. Case against other O.Ps. is dismissed without costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.27-7-2012
