BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.525/2012 against C.C.No.397/2011 District Forum-I, Visakhapatnam.
Between
NANO PRODUCTS HEAD
Passenger Car Business Unit,
Tata Motors Ltd.,
5th floor, One Forbes,
Dr.V.B.Gandhi Marg,
Kalnoda Post,
Mumbai-400 001. Appellant/
Opp.party 3
And
1. V.S.N.Raju,
S/o.late Jagannadha Raju
Aged 50 years, Hindu,
Salt Business, R/at Door No.1-126 A,
Vadapalem in Calingapatnam
Gara Mandal, Srikakulam-532 405 Respondent No.1/
Complainant
2. Siva Sankar Motors Pvt. Ltd.,
#43-9-41, TSN Colony
Visakhapatnam-530 016. Respondent No.2/
O.P.No.1
3. Tata Motors Finance Ltd.,
Door No.8-1-7,
Aakruthi Apartments,
Balajinagar,
Waltair Main Road,
Visakhapatnam-500 003. Respondent No.3/
O.P.No.2
Counsel for the Appellant : M/s. M.V.R.Suresh & Associates
Counsel for the Respondents: Mr.K.Srinivas-R1
R2-served.
R3-service of notice on R3 held sufficient.
QUORUM: SMT.M.SHREESHA, HON’BLE Incharge President
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
FRIDAY, THE ELEVENTH DAY OF OCTOBER,
TWO THOUSAND THIRTEEN
Order (Per Smt.M.Shreesha, Hon’ble Incharge President)
***
Aggrieved by the order in C.C.No.397/2011 on the file of District Forum-I, Visakhapatnam, the opposite party No.3 preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased a car Indigo LS Dicor Tata Make from the showroom of opposite party No.1 after paying down payment and by availing loan of Rs.4,40,000/- from opposite party No.2 on 11-9-2009 vide Loan account No.5000460399 for a total cost of Rs.5,88,746/-. The complainant submitted that the vehicle ran only for six months with many more complaints and the defects were brought to the notice of opposite party No.1. The inherent defect in the engine is that while running the car, all of a sudden it stops on the middle of the road for reasons not known to the complainant. Every time the 1st opposite party personnel used to attend to it and made the car run temporarily but again the same defect was repeating and it is only due to inherent defect in the core part of the engine of the car. The complainant submitted that opposite party No.1 men have also taken the defective car of the complainant by tie up with another vehicle and kept the same for long time on the pretext of through repairs but the effort of opposite party No.1 is not of permanent cure. The complainant submitted that from the date of purchase, the car struck down four times and for months together, opposite party No.1 kept the car in their garage and finally suggested to the complainant that the engine is badly inherent born company defective and asked the complainant to change the same by representing the defect to head office. Accordingly the defective engine was also change and he born all service charges including lubricants, filters and other accessories required by paying cost even then the old defect was not rectified and the car again struck down in the middle of the road. The complainant submitted that it is most unfortunate that even after replacing with new engine, the same defect generated and vexed with the same, the complainant handed over the defective car to opposite party No.1 on 02-1-2-2011 for getting it repaired thoroughly and opposite party No.1 intimated the complainant in writing that the service was completed for 25-2-2011.
The complainant submitted that he was doubtful about the full fledged rectification of the said car and demanded the opposite parties to give assurance in writing that the car will not give any future trouble. The complainant also got issued a legal notice dt. 3-6-2011 to the opposite parties 1 and 2 and demanded opposite party No.2 not to demand loan instalments or else replace the car with a new car within 2 weeks from the date of receipt of notice but they did not choose to reply. The complainant submitted that there is gross negligence and deficiency in service on the part of the opposite parties in selling a car with inherent defective engine which caused lot of inconvenience and mental agony. Hence the complaint for a direction to the opposite parties to replace new car in place of the defective car with that of the same model, design etc or in the alternative refund the entire cash payment to the complainant with interest thereon together with damages of Rs.50,000/- for mental agony and costs of Rs.10,000/-.
Opposite party No.1 filed counter resisting the complaint. It pleaded that it is the dealer of opposite party No.3 and admitted that the complainant purchased the car on 11-9-2009 and on 02-1-2010 and complained that the engine broke down at 6742 Kms and immediately they attended to it and identified the problem and replaced the engine and delivered the car on 04-1-2010. Opposite party No.1 submitted that as per warranty, the customer has to bear consumable charges and it is true that the complainant again complained about the same problem on 02-1-2011 and they immediately attended and changed the complainant’s car engine with another RECON engine and fulfilled the obligation of after service as per warranty conditions and denied any deficiency in service on their part. The workshop had already completed the job on 25-2-2011 and requested the complainant in writing to take delivery of the car but the complainant did not turn up. Opposite party No.1 submitted that without using the car after replacement of the engine, the complainant has no right to express doubt regarding the said engine and the problem which arose in the engine is rarest of the rare cases and that is why the manufacturer has given 16 months warranty and submitted that there is no negligence on its behalf .
Opposite party No.2 filed counter resisting the complaint. It contended that the complainant is a chronic defaulter in payment of the instalments and consequently delayed payments have resulted in addition to delayed payment charges or accrued over due charges. Opposite party No.2 submitted that the complainant agreed to make payments as per terms and conditions of the agreement and as a counter blast to the claim of outstanding amount of Rs.1,29,845.43, the complainant has come with this false complaint and prayed for dismissal of the complaint.
Opposite party No.3 filed counter resisting the complaint. It submitted that it is a limited company incorporated under the provisions of Company’s Act and renowned manufacturer of various types of commercial vehicles and 7having excellent workshops like opposite party No.1 and denied the allegations made in the complaint. It submitted that the complaint filed by the complainant does not fall within the definition of consumer dispute as there is neither manufacturing defect nor deficiency in service established against the opposite party. It submitted that the car requires mandatory servicing and replacement of specified components viz. Air filter, fuel filter etc. at recommended intervals as mentioned in owner’s manual and service book but the complainant failed/neglected to follow the guide lines given in the owner’s manual as recommended for smooth and effective running of the car. Opposite party No.3 submitted that the vehicle is subjected to misuse or inadequate maintenance or such services as prescribed in the owner’s manual are not carried out by the buyer at the authorised service centers and thereby the complainant violated the terms and conditions of the warranty and cannot be bestowed any benefits under warranty. It submitted that there is no expert’s report filed from a recognized laboratory and every customer has to carry out the mandatory service at regular intervals and there is no record to support it. The warranty shall be limited for 18 months from the date of sale or 50000 kms for commercial applications and there is no proper maintenance and servicing of the car by the complainant and he grossly violated the terms and conditions of the warranty. The car purchased by the complainant is well established product in the market for a period of years and the car was delivered after through checking in the company and only after being satisfied with the condition of the car, the car was purchased on or around 30-9-2009 from opposite party No.1 and brought on 14-10-2009 for the first time at 10 Kms. for value added service wherein Teflon treatment was done free of cost and again on 23-10-2009 at 10 kms. approximately when underbody treatment was done on paid basis at the complainant’s request.
The car was brought on 09-11-2009 at 1874 kms. (approx.) for first free service along with a minor complaint of door glass operation which was rectified and on 05-12-2009 it was brought for second free service at 5200 Kms. approximately which was done and on 07-12-2009, at 5,200 kms. for accidental repairs and as per clause 7, the warranty gets terminated when the car meets with an accident and the complainant was charged towards accidental related job cards and on 09-12-2009 at 5,200 kms. approximately, it was brought for accessory fitment when fog lamp was fitted on charge basis. Once again on 17-12-2009 at 6742 kms the car was brought for cold starting problem and engine noise level high and after inspection, it was found that timing tensioner belt was broken and ultimately it was found that the root cause of the problem was the engine and it was set right by replacing the bare engine under warranty. Thereafter the car reported on 05-2-2010 at 10,154 kms for 3rd free service, on 13-3-2010 at 14,882 kms for scheduled and value added services and again on 26-4-2010 at 19,581 kms approximately for 4th free service and accidental repairs which were done on paid basis. Again the car reported on 28-5-2010 at 23,766 kms. for scheduled and value added service apart from complaint of brakes hard etc. were attended on cost basis and thereafter the car reported on 29-5-2010 for accident repairs which was done on paid basis and on 28-7-2010 for value added services which was done on paid basis and again on 28-9-2010 at 33,559 kms for purported complaints of horn not working, head light focusing improper etch which was done on cost basis and thereafter it reported on 25-11-2010 at 38,886 kms, 10-12-2010 at 40,045 kms., on 23-12-2010 at 41,019 kms. and by 25-2-2011, it has covered 42,674 kms which manifests that the car in question had covered 2,510 kms. approximately per month which proves that the car was in absolute roadworthy condition. Opposite party No.3 submitted that they have promptly attended to the grievances reported and replacement of the car or refund of the amount is unsustainable.
Opposite party No.3 pleaded that the issues raised involve questions of fact as well as law and necessarily requires deposition of witnesses and hence the complaint has to be tried by a civil court and on that ground, the complaint may be dismissed. Opposite party No.3 submitted that the observations recorded by the Service Advisor on the job cards and steps taken for resolution of the complaints, were running complaints and improper maintenance of the car. The vehicles was brought for repairs on 03-1-2011 at 42,674 kms for cold starting problem and on opening the cylinder head cover, it revealed that the crank shaft bearing caps has scored and hydraulic lashes are broken and they were replaced by RECON bare engine assly. cylinder head without valves, assy. idler, timing belt etc. under warranty and the car was ready for delivery on 25-2-2011 but the complainant did not turn up though the alleged problems have been rectified by the service centre and hence prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B3 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties 1 & 3 to replace the engine of the complainant’s car with engine of the same type which would be fitted to the brand new car at the time of manufacturing together with compensation of Rs.25,000/- with interest at 9% p.a. from the date of order till the date of payment and dismissed the complaint against second opposite party.
Aggrieved by the said order, the opposite party No.3 preferred this appeal.
The appellant/opposite party filed written arguments. It is the case of the appellant/O.P.3 that the complainant reported to the service station with the following complaints as stated by the appellant in his written arguments.
a) First time on or around 14-10-2009 at 10 Kms. (approx) for value added services wherein Teflon treatment was done on free of cost and no complaint was reported by the complainant.
b) Again, the car reported for value added service on or around 23-10-2009 at 10 kms. approximately when underbody treatment was done on paid basis upon respondent’s No.1 request.
c) The car of the Respondent No.1 then reported on or around 09-11-2009 at 1874 kms. (approx.) for first free service along with a minor complaint of door glass operation hard which was rectified by repairing rubber beading noise under warranty.
d) Afterwards, the car reported on or around 05-12-2009 at 5200 Kms. (approx) for 2nd free and value added services wherein scheduled service, standard checks & engine waxing was done and neither any problem was raised by the Respondent No.1 nor observed by the service centre. Also, wheel balancing, checking & adjusting of front wheel alignment and change of consumables such as engine oil, oil filter etc. was done on paid basis.
e) The subject car reported once more on or around 07-12-2009, at 5,200 kms.(approx.) for accidental repairs. As per clause 7, the warranty gets terminated when the car meets with an accident and thus respondent No.1 was charged towards accidental related job works.
f) Again, the car reported on or around 09-12-2009 at 5,200 kms. approximately, for accessory fitment when fog lamp was fitted on charge basis and no complaint was brought to the notice of the workshop of the Respondent No.1.
g) The said car next reported on or around 17-12-2009 at 6742 kms (approx.) for cold starting problem and engine noise level high when after inspection, it was found that timing tensioner belt was broken. On further investigation, it was revealed that timing was disturbed and the root cause of the problem was the engine. Consequently the problem was set right by replacing the bare engine under warranty. Also consumables like engine oil, oil filter etc. was charged to the complainant.
h) Thereafter the car reported on 05-2-2010 at 10,154 kms (approx) for 3rd free service apart from the issue of brakes hard wherein normal maintenance services such as wheel balancing & checking and adjust of front wheel alignment and general check up was done and the purported issue was resolved by checking and determining condition of brake system under warranty.
i) The car of the Respondent No.1 later reported on or around 13-3-2010 at 14,882 kms (approx.) for scheduled and value added services besides the complaints of power window not working properly and fuel leakage when oil change, wheel balancing, checking and adjustment of front wheel alignment and engine waxing was done on cost basis. The alleged complaints were addressed satisfactorily by checking up power windows and fuel system for leaks under warranty.
j) Afterwards, the car reported on or around 26-4-2010 at 19,581 kms approximately for 4th free service and accidental repairs when scheduled service like change of gear oil and accident related job works like denting and painting were carried on paid basis.
k) The car in question subsequently reported on or around on 28-5-2010 at 23,766 kms.(approx) for scheduled and value added service apart complaint of brakes hard etc. wherein maintenance service such as wheel balancing, checking and adjusting of front wheel alignment, oil and oil filter change and value added service such as engine waxing was done on charge basis. The asserted complaint was repaired by changing brake pad on cost basis.
l) Again the car reported on or around 29-5-2010 at 24,048 Kms. (approx.) for accident repairs when accident related works were carried out on paid basis.
m) The subject car further reported on or around 28-7-2010 at 29,594 Kms.(approx.) for value added services along with the problems of battery discharged, parking brake problem, engine noise level high, gear disengagement difficult, power window not working properly & brakes hard and was attended by replacing poly vee belt, brake shoe kit, wheel cylinder assy. Assy. Wheel rim cover etc. on paid basis and synchrocone, shifter sleeve, sub assy. 5th gear lay shaft, etc. under warranty. Also consumable items such as engine oil, gear oil, brake oil, oil filter etc. were replaced on charge basis as per the schedule.
n) Afterwards, the car reported on or around 28-9-2010 at 33,559 kms (approx.)for purported complaints of horn not working, head light focusing improper and hard suspension when it was redressed by changing fog lamp, front suspension bush kit, etc. on cost basis and horn under warranty.
o) The subject car then reported on or around 25-11-2010 at 38,886 kms. approx. for scheduled service and accessory fitment besides the problem of cold starting when it was attended by providing off road help and dismantling and assembling cylinder head, replacing assy. Rff and hla, timing belt, assy. Idler etc. under warranty and replacing hoodlatch cable, front suspension bush kit and fog lamp on paid basis. Also, consumables like engine oil, brake oil, gear box oil, power steering oil, coolant, oil filter, fuel filter etc., were changed on charge basis.
p) Furthermore, the car reported on or around 10-12-2010 at 40,045 kms. (approx.) for scheduled service along with the complaints of cold staring problem and horn not working wherein wheel balancing, checking and adjustment of front wheel alignment, minor service, washing and vacuuming and clamp welding was done on chare basis.
q) The car of the respondent No.1 next reported on or around 23-12-2010 at 41,019 kms. (approx.) for the issue of engine oil leakage which was set right by cleaning sedimentor on paid basis.
r) Eventually the car in question reported on or around by 03-1-2011, it has covered 42,674 kms (approx.) for cold starting problem when after inspection, it was observed that timing tensioner bolet has broken and timing has been disturbed. On further investigation b opening the cylinder head cover, it was revealed that cam shaft bearing caps has scored and hydraulic lashes have broken. A copy of the photographs taken in this regard is collectively marked herewith as Annexure-A. Nonetheless the alleged problem was attended by replacing recon bare engine, assy. Cylinder head without valves, assy. Idler, timing belt etc. under warranty.
It is the case of the appellant/opposite party that the complainant neglected the guide lines given in the operator service book as recommended for smooth and better performance of the car in question and as per the terms of the warranty, the customer has to carry out the mandatory services at specified intervals but the complainant did not follow this schedule. The appellant noticed maintenance faults and operational faults during free servicing and also during paid servicing and the complainant failed to report his car for the recommended services at 30,000, 40,000 and 50,000 kms interval.
The learned counsel for the appellant relies on clause 5 of the terms and conditions which states that the warranty shall not apply if the vehicle or any part thereof is repaired or altered by any person other than their service establishment or authorised dealer or service point and to effect its reliability, their opinion shall be final and binding. If the vehicle is subject to misuse or negligence or inadequate maintenance or loading in excess of authorised capacity, for the authorised dealers, the warranty ceased to exist. It is also their case that the car met with an accident thrice and was brought to the workshop of OP 2 for repairs and that the complainant purchased the car on or around 10-11-2007 and it covered 45,153 Kms. by 26-6-2009 within a period of 19.5 months and covered 2,315 kms per month and therefore it can be concluded that the car is in road worthy condition.
The contention of the appellant that the District Forum did not refer to an expert or appropriate laboratory and therefore the award passed by the District forum is not correct is unsustainable on the ground that a perusal of the record shows that even the appellant did not file any interim application seeking for sending the car to such an appropriate laboratory. We also observe from the record that the District Forum had appointed a surveyor who has given a report (Ex.A11) which reads as follows:
TEST DRIVE REPORT
I have conducted a test drive of the car bearing the registration number AP 30 J 6869 along with the Telco service engineer Mr.Annamali and Mr.Pawan Kumar who is the works Manager of the authorized dealer M/s Siva Shankar (P) Ltd., on 08-5-2012. The owner of the vehicle Mr.Ysyaraju Suryanarayana Raju was also present while conducting the test drive.
We have selected the route towards Visakhapatnam Steel Plant via NAD kotha Road and Gajuwaka where there is possibility for frequent braking of the vehicle, shifting of the gears, sudden acceleration and braking and changing of the speed of the engine which required to know the perfect condition of the vehicle and the engine. We have covered total 40 kms. for this test drive. We have selected this route. We have started from the garage along with the above mentioned persons at 11.52 A.M.
From the garage, we have accelerated into traffic. While getting up the gradient to approach the high way from Industrial estate, the engine was giving an unusual noise and much acceleration was given to get up the gradient.
While stopping the vehicle at NAD Kotha Road Junction at signal point, the engine speed was totally reduced and shifted to lower gear. While moving in the lower gear after clearing the signals, the engine speed was not synchronizing with the acceleration and given a slight jerk.
After passing the air port and while getting into the bridge, the engine was noisy and much more acceleration is need to move the vehicle freely.
At Sheelanagar junction signal point, the vehicle was suddenly stopped after a good acceleration. We have reached steel plant main gate with maximum acceleration. We have stopped the a/c system and opened the window glasses to observe keenly the noise of the engine.
While coming back from the steel plant main gate, at the high way junction, when the vehicle was suddenly stopped, he engine was also stopped and again it required giving ignition to the vehicle. At Gajuwaka junction, again the engine was suddenly stopped. We have reached the garage at 1.20 P.M.
We have tested the vehicle while acceleration into traffic, observed the road and engine noise, passing acceleration (down shifting quickly) and tested the engine power while getting up the gradients.
I have observed noise from the engine while moving on the road, performance of the engine on sudden acceleration and down shift is not satisfactory. Much acceleration is requiring to get up even slight gradients. The engine is much noisier while getting up the gradients. The engine is not satisfactorily working in sudden acceleration and sudden gear changing. The engine not running smoothly and pulling hard. In may opinion, the troque of the engine is not sufficient. The manufacturer had given in the catalogue that this engine attains a torque of 140 JM at 1800 rpm. In my opinion, this engine is not attaining the maximum torque as specified by the manufacturer. The dealer is not having any scientific equipment to read the torque of the engine.
Considering the overall condition of the engine, the working condition of the engine is not satisfactory.
It is not in dispute that a test drive was conducted before the presence of the Service Engineer as well as the Works Manager of the opposite party dealer and in fact it is opposite party’s case as evidenced under Ex.B3 that there is no starting problem and engine performance is normal. Since the complainant prima facie established his case and the surveyor has given his report, it is for the opposite party to prove their case by way of an expert opinion which was not done.
It is also an admitted fact that the car had gone for repair to the opposite party’s dealer on several occasions and the contention of the appellant that it was not properly maintained is also not substantiated by any documentary evidence. Merely relying on the clause in the warranty that the opposite party is not liable for any faulty maintenance or alterations made by the complainant is unsustainable in this case as the complainant has not made any alterations to his vehicle nor did the appellant file any documentary evidence in support of their contention that there was faulty maintenance. Though the complainant had prayed for replacement of the vehicle with a new car or refund the amount paid, we rely on the judgement of the Apex court in MARUTI UDYOG LTD., v. SUSHEEL KUMAR GAB GOTRA reported in AIR 2006 SC 1586 wherein the apex court had clearly laid down law that in case where it was found that a particular part was defective what all the complainant would be entitled to is replacement of the defective part and also stated that if the defect is rectifiable, only the replacement of that part or rectification of the defect can be ordered and in the instant case since the District Forum had ordered for replacement of the engine only and not the replacement of the car, we do not see any reason to interfere with the well considered order of the District Forum. We also confirm the compensation of Rs.25,000/- awarded by the District Forum since compensation has already been awarded by way of damages, interest of 9% again on compensation is unjustified and is being set aside.
In the result this appeal is allowed in part and the order of the District Forum is modified setting aside the interest portion only while confirming the rest of the order of the District Forum. Time for compliance four weeks.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.11-10-2013.
