Karnataka

Dakshina Kannada

CC/346/2017

Mrs. Rajashree Nattoja - Complainant(s)

Versus

1. TATA Motors - Opp.Party(s)

Naveen Banninthaya P.R.

28 Jul 2020

ORDER

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT MANGALORE
Dated this the 28th day of July, 2020
PRESENT
SRI PRAKASH K. : HON’BLE PRESIDENT
SMT. LAVANYA M.RAI : HON’BLE MEMBER
SRI LINGARAJ P.V. : HON’BLE MEMBER
ORDERS IN
CONSUMER COMPLAINT NO.346/2017
(Admitted on 05.11.2018)
Mrs.Rajashree Nattoja,
W/o Mr.Subramanya Nattoja,
Aged about 43 years,
R/at “Shree Chakra”, Puttur,
D.K. District.
(Advocate for Complainant: Sri N.B.P.R.)
…..Complainant
VERSUS
1. TATA Motors, Bombay House,
24, Homi Modi Street,
Hutatma Chowk,
Fort, Mumbai – 400 001.
Reptd. By its competent
Authority/Office in charge.
Represented by Branch Manager.
2. The Auto Matrix,
Bejai, Mangaluru,
Represented by its Manager.
(Advocate for Opposite Party No.1: A.K.K.)
(Advocate for Opposite Party No.2 : G.M.U.)
………………. Opposite Parties
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ORDER DELIVERED BY HON’BLE PRESIDENT
SRI PRAKASH K.
I. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
2. The brief facts of the case are as under:
The complainant has purchased a TATA Hexa XM-7 Seater vehicle bearing chassis No.MAT614714HRK10553 and Engine No.VARICORO7KSYJ19161 from the OP No.2 on 19.10.2017. The OP No.1 is the manufacturer of the said vehicle. The complainant has paid a huge amount of around Rs.16,00,000/- for the said vehicle. That the OP No.2 is the authorised dealer of the OP No.1.
3. The vehicle has got a manufacturing defect and there arises a bizarre sound, when the speed of the vehicle touches 40 km per hour, subsequently it is learnt that, the said sound arises in any speed and continues for the entire journey. It is unbearable and irritating. Thus, on 20.10.2017 i.e. the next day of purchase of aforesaid vehicle itself, the complainant brought it to the notice of the OP No.2, by personally visiting to their service station. The service engineers of the OP No.2 inspected the vehicle and admitted that, there is a manufacturing defect and that there are several complaints of similar nature and that matter was brought to the notice of the OP No.1 and that the said issue will be resolved at the earliest and the maximum being 3 days.
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4. The complainant waited for some days and there was no communication from the OPs. Thus, the complainant again travelled all the way from Puttur to the OP No.2 twice. However, the OPs were not at all interest to deal with the queries of the complainant. The Complainant was told that, nothing can be done as such and the Complainant and advised to adjust with the same. Even the OPs are trying to avoid the complainant inspite of the fact that, the complainant purchased a vehicle from the OP No.2 by paying such a huge amount. The OPs have caused serious deficiency in their service. Because of the said defect in the vehicle, the complainant has undergone severe mental agony and it has shocked the complainant and the OPs are answerable for the said problems.
5. The complainant is shell shocked by the attitude of the OP No.2. the complainant has paid a huge sum of Rs.16,00,000/- and the OPs had represented to the complainant to the time of purchase that, the aforesaid vehicle is of a very good quality and that there are no problems whatsoever and induced the complainant for purchase of the same. The vehicle had a defect at the time of purchase itself and it is the duty of the OPs to fix the said issue. That the complainant is a very loyal customer of brand of the OP No.1 and in the past she has used various models of the TATA Motors and she had not expected such a lackadaisical attitude from the OPs towards the longstanding customer like the complainant. The complainant had chosen Hexa XM7 seater vehicle inspite of better offers from rival multinational companies owing to the fact
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that the OP No.1 company is an Indian automobile company and the complainant has a special attachment towards Indian goods.
6. Afterwards on 07.11.2017 and on 27.11.2017 the complainant has issued a registered lawyer’s notices, calling upon the OPs to immediately refund the entire amount to the complainant alongwith an interest of 18% p.a. or in the alternative to give a new TATA Hexa XM-7 seater free of any defects to the complainant and also to pay a compensation of Rs.2,50,000/- being the damages towards the mental agony undergone by the complainant, within 15 days of the receipt of the notice. The said notice was duly served on the OPs. Inspite of the same the OPs neither replied nor complied the demand made therein. Hence, this complaint with reliefs as claimed in the complaint.
7. After service of notices, OP No.1 and 2 appeared through their counsel and filed separate version.
8. OP No.1 in the version submitted that as a matter of business practice, do not deal with any customer for sale of the new car or vehicle, hence, cannot comment what transpired between the complainant and the 2nd OP at the time of sale. However, it may be noted that all the vehicles manufactured by this OP undergo strict quality checks, certified and thereafter dispatched to the dealers across the country. The vehicle sold at the dealership point also undergoes pre-delivery inspection and being satisfied with the condition and performance of the vehicle, it is sold to the consumers
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and in this case also, the said process ought to have followed at the OP No.2. This OP has been further given to understand that there was no problem with the vehicle at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction and the same ought to have acknowledged by the complainant in the vehicle delivery acknowledgement note.
9. OP No.1 in the version has further submitted that the complainant brought the vehicle to the workshop of op No.2 for the complaint of unusual noise when accelerating and deaccelerating the vehicle at low RPM wherein a though inspection was done and the alleged nosie was found to be as normal operating noise (gargling) of the vehicle. Further, to reduce the gargling noise, a wsoftware update was end after which there was reduction in the noise level. However, the complainant is adamant and falsely alleges that noise is still there. It is pertinent to mention here that vehicle in question is a contemporary lifestyle utility vehicle capable of taking on any terrain/road conditions with the most modern and innovative features like the Super Drive Modes. The vehicle is equipped with a supremely reliable VARICOR400 power train capable of delivering Class leading 400 Nm torque and 156 Ps power output which is the workhorse behind this machine. In certain operating conditions, when the vehicle is suddenly accelerated from low engine speeds in high gear (i.e. 3rd, 4th & 5th gear) and then instantaneously released, a Boost Pressure Effect is observed and a noise is sometimes heard which resembles a gargling sound. This happens as the engine
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responds immediately to the requirement of sudden acceleration and develops high boost and this boost pressure remains momentarily high due to inertia een when the foot is lifted from the accelerator pedal and resulting into entrapped air. The release o this entrapped air creates gargle type noise. There is no harm to the engine or powertrain system as a result. This power train has been extensively validated across extreme operating conditions and this boost pressure effect is a normal phenomenon. Hence, it is clear that noise as observed by the complainant is a normal noise of the vehicle and is not a manufacturing defect as alleged.
10. The answering opposite party denies all the averments made at para 5 of the complaint and submits that the complainant has alleged a bald statement about vehicle having a defect at the time of purchase itself without producing expert report from a authorised laboratory as pe the provisions of the Act and in absence of the same, the allegations are baseless and misconceived and merits dismissal. It may be clarified that noise as alleged by the complainant is a normal noise in the vehicle. The answering opposite party herein relies on Clause 6 of the warranty policy, which states that, “slight irregularities not recognized as affecting the function/quality of the vehicle or parts such as slight noise/vibration and defects appearing only under particular or irregular operations are items considered characteristic of the vehicle.
11. With regards to the averments made from Para 6 of the complaint, it is submitted that upon receipt of the legal notice, the
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answering opposite party has conducted a thorough investigation of the problem whereby the claims of the complainant were found to be devoid of any merits and thus, no action was taken by this opposite party.
12. The averments made at para 7 & 8 of the complaint are denied as false, save and except, which are matters of record and the complainant be put to strict proof of the same. Further, the alleged contention of the complainant is against the terms and conditions of the warranty of the vehicle to refund the price when there is no defect. The warranty of the said vehicle clearly stipulates that the obligation of the manufacturer under the warranty shall be limited to repair and replacement of such parts, free of costs, if found to be defective when the said vehicle being brought to the manufacturer or the authorised dealers within the warranty. It is stated that problem as and when raised by the complainant have been duly investigated wherein the noise which was observed in the vehicle was found to be a characteristic noise of the vehicle. It is thus apparent that it’s a normal noise and there exists no manufacturing defect in the vehicle or deficiency in service meriting any compensation. Hence prayed for the dismissal of the complaint as there is no deficiency in service on the part of the opposite party No.1.
13. OP No.2 in version has submitted that the complaint is false, frivolous, vexatious and not maintainable either in law or on the facts.
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14. OP No.2 in the version admitted that the complainant has purchased a TATA Hexa XM-7 Seater Car, through opposite party No.2. which is manufactured by the opposite party No.1 for Rs.13,45,301/- (which includes all taxes) on 19.10.2017,as per the Invoice issued by opposite party No.2 dated 19.10.2017,but not for Rs.16,00,000/- as alleged in the complaint. The complainant took delivery of the said vehicle on 19.10.2017.
15. opposite party No.2 in the version has denied the allegations made against them in the complaint.
16. opposite party No.2 has contended that in the complaint that she has paid Rs.16,00,000/- for purchase of the said vehicle. But in fact the invoice amount is Rs.13,34,301/-.
17. opposite party No.2 has further contended that the complainant has issued two notices as mentioned in the paragraph 6 of the complaint. After service of the said notice the complaint was called upon to bring the said vehicle for inspection it was noticed that, there was no such complaint in the said Vehicle or there is any manufacturing defect. Admittedly is a Diesel Engine vehicle and there is a operational noise in every diesel engine vehicle as compared o Petrol Engine vehicle. Besides that, the said vehicle being run in village mud road having most uneven surface, there will be definitely, more vibration and sound, which cannot be said as bizarre Noise. After explaining the said facts by the service personnel of the OP No.2, the complaint was satisfied and he took
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the vehicle after having satisfied with the same and therefore, no reply was sent to the complainant for the said notice. The said vehicle is perfectly alright and there is no manufacturing defect and hence the question of refunding the said entire purchase amount or payment of compensation does not arise and the opposite party No.2 is neither liable to comply with the said demand nor the complaint is entitled for such relief. The complainant is not entitled for any relief sought in the complaint.
18. OP No.2 submitted that the said vehicle was met with a major accident on 29.11.2017 at Padil, Mangalore and on account of the same the said vehicle got damaged extensively. It was brought to the workshop of the opposite party No.2 and opposite party No.2 took 20 days to make it roadworthy and repaired perfectly to the satisfaction of the complainant at a cost of Rs.1,044,173/- which has been settled by the insurance company of the complainant. But absolutely there is whisper with regard to the said accident in the complaint. Such being the case how the complainant put forward such false case and claim refund of the entire amount and also damages against the OPs.
19. There is no deficiency of service rendered by the OPs and absolutely there was no reason to the complainant to suffer mental agony or tension or loss or hardship, as alleged in the complaint. The complainant is still making use of the said vehicle and the opposite party No.2 is given to understand that the said vehicle being run extensively for the last five months. If there was
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manufacturing defect and on account of the same the complainant has suffered mental agony, tension, hardship, she would have returned the said vehicle immediately and claimed the entire amount paid by her for purchase of the same. The complainant having chosen to run the said vehicle now cannot question the opposite party or make unlawful demand. The complaint cannot blow hot and cold together. The fact that, the complaint has been making use of the said vehicle extensively for the last 5 months, very allegation of bizarre or unbearable sound in the said vehicle cannot be believed.
20. Without prejudice to the aforesaid contentions it is submitted by the OP that in the event of complainant able to show this forum by getting an expert’s opinion from a qualified person to the effect that there is a manufacturing defect in the said vehicle, then it is for the opposite party No.1 being the manufacturer to settle the alleged claim of the complainant and not the opposite party No.2 who is just a dealer. The Op No.2 being the dealer is no liable for settling the claim of the complainant for the alleged manufacturing defect in the said car. Hence, opposite party No.2 to dismiss the complaint as there is no deficiency in service nor they are not liable to refund any amount paid by the complainant nor any reliefs claimed in the complaint.
21. In support of the above complaint, one Mrs.Rajashree Nattoja (Complainant) has filed affidavit evidence and examined as CW1 and produced documents, got marked asEx.C-1 to Ex.C-21 as detailed in the annexure here below. On behalf of the Opposite Party No.2 one
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Rajaram, General Manager, Service working at Department, Auto Matrix, Bejai, Mangalore has filed affidavit evidence as RW1 and answered the interrogatories served on him and on behalf of the OP No.1 one G.S.Arjun Kumar, Senior Manager – Legal of opposite party No.1 has affidavit evidence as RW2 and answered the interrogatories served on him. On behalf of the opposite parties produced documents marked as Ex.R-1 t Ex.R-5. Heard the parties.
22. In view of the above said facts, the points for arise for our consideration in the case are:
1) Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
2) If so, whether the Complainant is entitled for the reliefs as claimed in the complaint?
3) What Orders?
23. We have considered entire case file on record including evidence tendered by the Complainant. Our findings on the points are as under follows:
Point No.1: In the Affirmative.
Point No.2 : In the Affirmative.
Point No.3: As per the final order.
REASONS
Point No.1:
24. One of the main contention of the complainant in his complaint that the aforesaid vehicle has got a manufacturing defect
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and there arose a disaster sound when the speed of the vehicle touches 40 KMPH. It is unbearable and irritating and this on 20.10.2017 i.e. the next day of purchase of aforesaid vehicle itself Complainant brought up to the notice of the Opposite Party No.2 by personally visiting to their service station and service engineers of the Opposite Party No.2 has inspected and admitted that there is a manufacturing defect and that the issue will be resolved at the earliest and maximum being 3 days. However Complainant states that Opposite Party No.2 had refused to note the said complaint of the Complainant in the job sheet. On the other hand Opposite Party No.1 specifically stated that the cars and vehicles manufactured at the plant of this Opposite Party are also thoroughly inspected for control system, quality checks and test drive before passing through factory works for dispatch to the authorised dealer appointed on a ‘principal to principal’ basis for sale of the cars and vehicles. Further in para 4 of the parawise reply from 6th line, Opposite Party No.1 stated that “noise alleged by the complainant is a normal noise in the vehicle”. In para 6 of the parawise reply in the version filed by Opposite Party No.1 from the 9th line he states that “problem as & when raised by the Complainant have been duly investigated wherein the noise which was observed in the vehicle was found to be a characteristic noise of the vehicle. It is thus apparent that it is a normal Nosie and there exists no manufacturing defect in the vehicle or deficiency in service meriting any compensation.
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25. Thus in this entire version of Opposite Party No.1 admitted some of the noise in the alleged vehicle and it was operative noise, classic type noise, normal noise, characteristic noise and thus he says it is a normal noise and there exists no manufacturing defect in the vehicle.
26. On the other hand the main defence of the Opposite Party No.2 stated in para 6 of the version which reads like this :
After service of the said notice the complaint was called upon to bring the said vehicle for inspection it was noticed that, there was no such complaint in the said Vehicle or there is any manufacturing defect. Admittedly the said vehicle is a Diesel Engine vehicle and there is a operational noise in every diesel engine vehicle as compared to Petrol Engine vehicle. Besides that, the said vehicle being run in village mud road having most uneven surface, there will be definitely, more vibration and sound, which cannot be said as bizarre Noise.
27. Further in para 9 of the version of Opposite Party No.2 has specifically stated that in the event of the Complainant able to show to this Hon’ble Forum by getting an expert opinion from a qualified person to the effect that there is a manufacturing defect in the said vehicle, then it is for the Opposite Party No.1 being the manufacturer to settle the alleged claim and not the Opposite Party No.2 who is just a dealer and Opposite Party No.2 being dealer is not liable for settling the claim of the Complainant for the alleged manufacturing defect in the said car.
28. Now the question is whether there is any manufacturing defect in the alleged vehicle and due to manufacturing defect bizarre sound arose in the said car.
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28. In the evidence of CW-1 / Complainant stated that said sound arises in any speed and continues for the entire journey. The Senior Manager of Opposite Party No. in his evidence examined as RW-2 stated at para IX of his evidence, which reads like this:
“IX. I submit that the Complainant brought the vehicle to the workshop of Opposite Party No.2 for the complaint of unusual Nosie when accelerating and deaccelerating the vehicle at low RPM wherein a thorough inspection was done an the alleged noise was found to be as normal operating noise (gargling) of the vehicle. Further, to reduce the gargling noise, a software update was end after which there was reduction in the noise level. However, the Complainant is adamant and falsely that noise is still there. It is pertinent to mention here that vehicle in question is a contemporary lifestyle utility vehicle capable of talking on any terrain/road conditions with the most modern and innovative features like the Super Drive Modes. the vehicle is equipped with a supremely reliable VARICOR400 power train capable of delivering leading 400 Nm torque and 156 Ps power output which is the workhorse behind this machine. In certain operating conditions, when the vehicle is suddenly accelerated from low engine speeds in high gear (i.e. 3rd, 4th & 5th gear) and then instantaneously released, a Boost Pressure Effect is observed and a noise is sometimes heard which resembles a gargling sound. This happens as the engine responds immediately to the requirement of sudden acceleration and develops high boost and this boost pressure remains momentarily high due to inertia even when the foot is lifted from the accelerator pedal and resulting into entrapped air. The release of this power train system as a result. This power train has been extensively validated across extreme operating conditions and this boost pressure effect is a normal phenomenon. Hence, it is clear that noise as observed by the Complainant is a normal noise of the vehicle and is not a manufacturing defect as alleged.”
29. Thus in the evidence of RW-1 also states that noise is observed in the Complainant’s car which is normal noise and it is not manufacturing defect.
30. In interrogatories No.3 and 4 served by the Complainant to RW-2 / Opposite Party No.1 and reply given, which reads like this :
3
:
Do you mean to say that, the bizarre sound mentioned in the complaint is operational Nosie, if yes; do you have any documentary evidence to substantiate the same?
Ans
:
Yes, the sound is an operation noise and we can produce evidence to prove the same.
4
:
According to you, whether that bizarre sound is found in all
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TATA Hexa Vehicle? If yes, can you produce any such vehicle before this Honourable Forum? Answer the question specifically .
Ans
:
Yes, the Operational Noise is there in all Hexa vehicles.
But in this Opposite Party No.1 has not produced any other vehicle or supported documents to show that it is a normal noise or operational noise.
31. Further in interrogatories served by the Complainant to Opposite Party No.1 / RW-2 and reply given which reads like this:
7
:
Can you explain the type of noises covered under the operation noise, as stated by you in the affidavit filed in lieu of chief examination?
Ans
:
There can be various types of noises:
a) Atmospheric Noise: Atmospheric Noise is also known as static noise which thunderstorm and the natural disturbance occurring in the nature.
b) Industrial Noise: Sources of Industrial noise are auto-mobiles, aircraft, ignition of electric motors and switching gear. The main cause of Industrial noise is High voltage wires. These noises is generally produced by the discharge present in the operations.
c) Extraterrestrial Noise: Extraterrestrial Noise exist on the basis of their originating source. they are subdivided into
i) Solar Noise
ii) Cosmic Noise.
But the Complainant specifically stated that noise found in the vehicle is a bizarre sound. Further in interrogatories No.42, 43, 45 served by the Complainant to Opposite Party No.1 / RW-2 which reads like this:
42
:
What is meant by normal operating noise (Gargling)? According to you, whether the bizarre sound mentioned in the complaint is a normal operating noise? If so, again whether the sound found in the Complainant’s vehicle is found in all Tata Hexa XM-7 seater vehicles? If so. can you produce any such Tata Hexa XM-7 seater, which is having a similar operational noise/bizarre sound mentioned in complaint before this Honourable forum?
Ans
:
The questions at point No.42 are already answered earlier.
43
:
According to you, whether you made any attempt to reduce
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the gargling noise? If yes, whether any improvement is found? If any improvement is found, what is that improvement found in that vehicle? According to you, even after that whether such gargling noise still persists or disappeared ? Can you produce any documents to substantiate the same?
Ans
:
With regard to the questions at point No.43 attempt to reduce it was taken and accordingly to reduce the gargling noise, a software update was and thereafter there was reduction in the noise level. However, the Complainant is adamant and falsely alleges that noise is till there.
45
:
If according to you, no unusual noise was found, why did you update software as stated in the Para 9 of the affidavit? Can you show specifically what is the software updated to the Complainant’s TATA Hexa XM-7 seater vehicle?
Ans
:
With regard to the questions at point No.45 and as already stated that an attempt was made to reduce the operational noise and same was reduced down.
32. In this case Opposite Party No.1 has not produced any such Tata XM-7 Seater vehicle to show that which is having similar operational noise.
33. Opposite Party No.2 produced a decision passed in M/s Maruti Suzuki India Ltd. V/s Dr.Sneh Jain and another in First Appeal No.814/2009 wherein the Hon’ble State Commission, Delhi has opined in para 20 which reads like this:
“No denying the fact that onus was on the Complainant (Respondent-1) to produce expert evidence to prove her allegation regarding manufacturing defect in the vehicle. Mere allegations without any corroborative evidence cannot prove the Case of the Complainant (Respondent – 1).”
Thus in the above case the State Commission Delhi clearly found that onus was on the Complainant to produce expert evidence to prove her allegation regarding manufacturing defect in the vehicle. In the present case, Complainant filed application U/s 13 (4) of the Consumer Protection Act, 1986 to appoint the Court Commissioner to
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inspect the vehicle and to submit the report to find out whether the said sound is because of manufacturing defect. Both Opposite Party No.1 and 2 seriously objected the said I.A. Further this Forum allowed the said I.A., accordingly one Harekrishna B., Retired, Head of the Department in Automobile Department at VPT Puttur, D.K. appointed as Court Commissioner. Court Commissioner also issued notice to both parties and inspected the vehicle on 27.08.2018. The Court Commissioner also inspected the vehicle alongwith Shri Bhaskar, Sr. Grade Lecturer, Department of Automobile Engineering, KPT Mangalore and Shri Nalinaksha N., Pro “Cartech”, Puttur and after the test drive inspection, the Commissioner opined as below according to his best and knowledge which reads like this:
1.
While driving the subject car in second and third gear especially with the engine speed around 1500-2200 RPM there is an “Abnormal irritating sound” from the engine compartment.
2.
This abnormal irritating noise will sound more while de-accelerating the subject car under the condition mentioned in the above point.
3.
The abnormal irritating sound identified in the subject car will be continuous alongwith the fluctuations in acceleration.
4
In addition to this:
a)
kilometer covered by the vehicle according to the odometer reading is 16037 km.
b)
This abnormal irritating noise will sound more while e-accelerating the subject car under the condition mentioned in the above point.
c)
The abnormal irritating sound identified in the subject car will be continuous alongwith the fluctuations in acceleration.
d)
There are no any external damages found on the vehicle body at the time of inspection so that the above mentioned “Abnormal irritating sound” in the running condition of the subject car may because of the manufacturing defect as per my knowledge.
Thus the Commissioner Report clearly indicates that at the time of inspection of said car he found abnormal irritating sound from the
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engine compartment. This abnormal irritating noise will sound more while de-accelerating the subject car under the condition mentioned in the above point. Commissioner further found that the abnormal irritating sound identified in the subject car will be continuous alongwith the fluctuations in acceleration. Thus overall seeing the observation made by the Commissioner goes to show that there is a abnormal irritating noise and abnormal irritating sound in the alleged vehicle.
34. Both Opposite Parties filed serious objection to the Commissioner Report and in the objection he specifically stated that the retired Head of the Automobile Department, is neither an appropriate body under section 13(1)(c) of the Consumer Protection Act, to give the expert report on alleged manufacturing defects of the car in question nor having any infrastructure to carry out such activities. He further contends that the Complainant is duty bound to submit the expert report from an “appropriate laboratory” as per Circular letter No.DO.No.10/39/87-CPU dated June 13, 1988 issued under Sec.2(1) of the Consumer Protection Act in support of the alleged manufacturing defect in the car.
35. Opposite Party No.1 further stated purported inspection of the car was not done in presence of this Opposite Party to substantiate the authenticity of the findings at the time of inspection. He contends that Mr. Bhaskar, Senior Prof. at KPT, Mangalore is not an authorised person to be present at the time of inspection and there was no intimation or order of this Forum directing him to be present.
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Further the Complainant did not allow this Opposite Party to enter into the vehicle during inspection and only the Complainant and the expert commissioner took the vehicle for inspection. Hence Opposite Party No.1 contends that the retired Head of the Automobile Department has purposely in collusion with the Complainant has not allowed this Opposite Party to be present while vehicle was taken for inspection and further contends that such act/omission on the part of the Retired Head of the Automobile Department is contrary to the settled provisions of the law and is in breach of principles of fair play, equity and natural justice, hence this Opposite Party refers to the judgment passed by the Hon’ble National Commission in case of Rakesh Gautam Vs. Sanghi Brothers Ltd. & Ors. (R.P. No.40 of 2006) wherein it has been held that inspection of a vehicle needs to be done in presence of the Opposite Party, the manufacturer and without their presence, the finding cannot be substantiated.
36. We have already stated in the version, Opposite Party No.1 also stated it is a normal noise but we have already opined that Opposite Party has not produced any other such Tata Hexa XM-7 seater vehicle or supported documents to show it is normal noise or operational noise. Thus in our opinion there is noise in the engine of the vehicle in question.
36. Opposite Party’s counsel also produced an order passed by Hon’ble National Commission Consumer Disputes Redressal, Delhi, Review Petition No.981/2007, TELCO V/s Hardip Singh and another,
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in the said order the Hon’ble State Commission observed that the dealer/manufacturer is liable to replace any defective parts of the vehicle within the warranty period.
37. The learned counsel for Opposite Party No.1 also produced order passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh, the Hon’ble Commission in First Appeal No.335 of 2012 in M/s Tata Motors Ltd. Bombay & 3 others V/s Sh.Harpinder Singh,, wherein it is held in para 14 which reads like this:
“Certainly, there is noise in the engine of the vehicle, in question, and in our considered opinion, one opportunity must be given to the Opposite Parties, to rectify the same, under the supervision of their expert engineers and thereafter, furnish as affidavits to this effect, to the Complainant. In case, the Opposite Parties could not rectify the defect of noise in the engine of the vehicle, in question, then the whole engine should be replaced by them, free of cost, in order to make the car roadworthy. In this view of the matter, the impugned order needs to be modified as indicated above.
38. In this case, we are of the opinion there is noise in the engine of the vehicle. Therefore, in the present case also one opportunity must be given to the Opposite Parties to rectify the same under the supervision of their expert engineers and thereafter, furnish the affidavit to this effect to the Complainant. In case the Opposite Parties could not rectify the defect of noise in the engine of the vehicle in question then the whole engine should be replaced by them free of cost to make the car roadworthy. Accordingly, we answer the Point No.1 in the Affirmative.
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Point No.2:
39. In view of the Affirmative answer to Point No.1, we hold that the Complainant is entitled for the reliefs. By giving direction to Opposite Party to set right the defect of noise in the engine of the vehicle in question and in case of failure to do so Opposite Parties are to be directed to replace the defect free engine in place of present engine in the vehicle and also to pay a sum of Rs.25,000/- as compensation. Awarding a sum of Rs.10,000/- as cost of the proceedings will serve the ends of justice. Hence, we answer this point accordingly.
Point No.3:
40. In the result, we proceed to pass the following:
ORDER
The complaint filed by the Complainant U/s 12 of the C.P. Act against the Opposite Parties is hereby partly allowed.
Opposite Party No.1 and 2 jointly and severally directed to rectify the defect of Noise in the engine. In case of failure to rectify the defect (noise) in the engine within 30 days from the date of handing over of the vehicle by the Complainant, Opposite Parties are directed to replace the new defect free engine to the Complainant’s vehicle of same model and also to pay a sum of Rs.25,000/- as compensation to Complainant.
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Opposite Parties are jointly and severally further directed to pay a sum of Rs.10,000/- as cost of the proceedings.
Opposite Parties are directed to comply with the aforesaid order within 30 days from the date of receipt of this order.
(Page No.1 to 22 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of July 2020)
(P.V. LINGARAJ)
MEMBER
D.K. DISTRICT CONSUMER FORUM, MANGALURU
(LAVANYA M.RAI)
LADY MEMBER
D.K. DISTRICT CONSUMER FORUM, MANGALURU
(PRAKASH K.)
PRESIDENT
D.K. DISTRICT CONSUMER FORUM, MANGALURU

ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Rajashree Nattoja (Complainant)
Documents marked on behalf of the Complainant:
Ex.C 1 : Copy of the Receipt dated 19.10.2017 issued by the O.P.No.2
Ex.C 2: Copy of the Tax Invoice dated 19.10.2017 issued by the
Opposite Party No.2
Ex.C 3: Coy of the Letter dated 19.10.2017 issued by the O.P.No.2.
Ex.C 4: Copy of the cover Note Dated 19.10.2017 issued by TATA AIG,
General Insurance Co. Ltd.
Ex.C 5: Office copy of the legal notice dated 07.11.2017.
Ex.C 6: Original Postal Acknowledgement.
Ex.C 7: The Returned Postal Envelope
Ex.C 8: Office copy of the Legal notice dated 27.11.2017.
Ex.C 9: Postal Acknowledgement
Ex.C 10: The Certificate issued to the Complainant
Ex.C 11: C.D.
Ex.C 12: The Notarised copy of the Driving License pertaining to the
Complainant
Ex.C 13: The Notarised copy of the Receipt dated 12.10.2017 issued by
Auto Matrix, Bejai, Mangalore
Ex.C 14: Notarised copy of the Tax Invoice dated 19.10.2017 issued by
Auto Matrix, Bejai, Mangalore.
Ex.C 15: The Notarised copy of the Receipt dated 19.10.2017 issued by
Auto Matrix, Bejai, Mangalore.
Ex.C 16: The Notarised Copy of the Tax Invoice dated 19.10.2017
issued by Auto Matrix, Bejai, Mangalore.
Ex.C 17: The Notarised copy of the Cash Bill dated 19.10.2017 issued
by Auto Matrix, Bejai, Mangalore.
Ex.C 18: The Notarised copy of the Receipt dated 23.10.2017 issued by
TATA AIG Insurance Company.
Ex.C 19: The Notarised copy of the statement of account pertaining to
the Trust belongs to the Complainant and her husband in Axis
Bank from 01.04.2017 to 19.10.2017.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri Rajaram, General Manager, Service working at
Department, Auto Matrix, Bejai, Mangalore.
RW2 – G.S. Arjun Kumar, Senior Manager – Legal of Opposite
Party No.1
Documents marked on behalf of the Opposite Parties:
Ex.R 1 : Duplicate Invoice dated 19.10.2017.
Ex.R 2 : Vehicle Delivery Acknowledgement dated 19.10.2017.
Ex.R 3 : Job Card of the Vehicle dated 29.11.2017.
Ex.R 4 : Tax Invoice dated 18.12.2017.
Ex.R 5 : Service History of the Car sold to the Complainant dated
21.10.2017 to 16.01.2018.
Dated: 28.07.2020 PRESIDENT