PRESIDENT

 1)        The Complainant by this complaint has prayed that the Opposite Parties be directed to refund an amount of Rs.1,82,000/- alongwith interest @ 18% p.a. from the date of legal notice issued to the Opposite Parties.  It is also prayed by the Complainant that the Opposite Parties be directed to pay Rs.1,00,000/- @ Rs.2,000/- per day for 50 days during which the car of the Complainant was under service at the workshop of the Opposite Parties.  The Complainant has also prayed that the Opposite Parties be directed to pay Rs.5,000/- towards cost of the notice and the complainant.

2)        According to the Complainant, the Opposite Party No.1 is Authorized Car Dealer of the Opposite Party No.2.  The Opposite Party No.2 is Manufacturer of cars with the brand name Tata and has appointed Opposite Party No.1 as its Dealer.  It is alleged that the Complainant had purchased Tata Indigo GVS Petrol Car from the Opposite Party No.1 by order dtd.08/02/2008.  The said car was delivered to the Complainant vide delivery challan dtd.16/02/08 having Registration No.MH-02-JP-2514.  The showroom price of the said car was Rs.4,46,632/-.  It is submitted that before deliver of the said car the Complainant has paid total amount of Rs.1,62,500/- for expenses viz; balance 10% + insurance + registration + stamp duty + ex-warranty + 1 EMI + down pay + CNG – KIG charges + Accessories 1& 2 + other charges. The copies of the order dtd.08/02/2008 delivery challan dtd.16/02/2008 and receipts of the payments made by the Complainant to the Opposite Party No.1 are marked as Exh.‘A’ colly. 

 3)        According to the Complainant, the said car was purchased by obtaining loan of Rs.4,01,000/- from Tata Motors Finance Ltd. on 06/02/08. The documentation regarding the said loan was completed by the Opposite Party No.1. The monthly installment for the said loan is Rs.9,271/-.  The total price of the car including loan amount and interest thereon will be Rs.5,56,260/-.  The copy of the sanction for loan agreement dtd.09/02/08 is marked as Exh.‘B’

4)        It is the case of the Complainant that initially for two months the said car was running properly but thereafter in the month of April, 2008 it started giving problems in gear, clutch and leakage in battery, etc.  The Complainant immediately informed about the said problem to the Opposite Party No.1 & 2 through e-mal dtd.07/05/08 and requested to provide necessary service, but there was no response from the Opposite Parties No.1 & 2.  The copy of the said e-mail is marked at Exh.‘C’.  It is alleged that in the month of May, 2008 the said car started giving various other problems which are continued till the filing of the complaint.  It is submitted that besides the above mentioned faults there were problems in Engine and CNG supply of the said car.  The Complainant under frustration gave the said car for servicing in the workshop of Opposite Party No.1 which was kept there for 10 days.  The Complainant had informed the said fact to the Opposite Party No.1 & 2 through e-mail dtd.21/05/08 and requested to take immediate action by providing necessary service.  The copy of which is marked as Exh.‘D’.  It is submitted that the car was lying in the workshop of the Opposite Party No.1 for 10-15 days in every month due to which the Complainant suffered grave inconvenience and monetary loss as he was required to spend Rs.2,000/- per day for hiring a car to travel 80-90 km.  According to the Complainant, he received reply from Sr. Assistant Custom Car Cell, Mumbai of Opposite Party No.2 taking cognizance of the complaint dt.21/05/08.  The Complainant replied to the said e-mail on 03/06/2008 requesting to take immediate steps to solve the faults in various parts of the machine of the said car.  The copies of the said e-mail are marked as Exh.‘E’

5)        It is alleged that as there were no improvement in the said car even after servicing by the Opposite Party No.1, regarding the problems in clutch, gear, CNG supply, poor pick-up in CNG & Petrol were continuous in nature.  The Complainant faced many problems such as stoppage of car automatically while driving on road.  The Complainant therefore, again made complaint through e-mail dtd.09/06/08, but there was no response from the Opposite Parties.  The Complainant again gave the said car for servicing in the workshop of Opposite Party No.1 & 2 and the said car remained there for 15 days.  The copy of the said e-mail is marked as Exh.‘F’.  It is submitted that due to the above defects in the car on 01/07/08 the Complainant met with an accident on highway near Thakur Complex, Kandivali, Mumbai as the car automatically stopped in the middle of the road and a truck overtook the car.  It is submitted that fortunately Complainant got survived in the said accident.  It is alleged that such type of accident again occurred on 13/07/2008 at Palm Beach Road, New Mumabi where the car of the Complainant hit to another car due to which the car of the Complainant got totally damaged.  The Complainant again gave the said car for servicing and to carryout the repairs of the damaged parts.  The Complainant had to spend Rs.19,500/- for the repairs of the car.  It is submitted that due to supply of defective car by the Opposite Parties the Complainant has suffered monetary and physical loss. The copy of the bill is marked at Exh.‘G’.

 6)        It is alleged that as there were lot of defects in the manufacturing of the said car the Opposite Parties No.1 & 2 were unable to cure the same.  The car of the Complainant constantly remained in the workshop of the Opposite Party No.1& 2 for serving for minimum 10 to 12 days in a month.  The Complainant had given several complaints, letters requesting to take prompt action as regards his car.  The copies of the complaint made through e-mails dtd.08/06/08, 17/07/08, 26/08/08 are at Exh.‘H’ colly.

 7)        It is alleged that the Opposite Party No.2 vide their e-mails dtd.23/06/08, 07/07/08, 11/07/08 assured the Complainant that their offices are going to take immediate action upon his complaint and will resolve the problems on priority basis.  However, the same were not fulfilled.  The copies of the e-mails of Opposite Party No.2 referred above are filed at Exh.‘I’ colly.  According to the Complainant, he had suffered lot of hardship due to the supply of defective car as well as monetary loss and also suffered mental agony for 5 months after purchasing the car.  It is alleged that due to continuous problem in the said car and there was no response from the Opposite Parties the Complainant got frustrated and stopped using the said car and presently it is lying in his parking lot.  It is submitted that the Complainant has lost his trust upon the brand name of Opposite Party No.2 and therefore, he does not want to use the said car in future and wish to return the same to the Opposite Party No.2 at the earliest.  The Complainant issued legal notice dtd.18/09/08 to the Opposite Party No.1 & 2 and called upon them to resolve the dispute and refund the total amount of Rs.2,82,000/-.  The said notice was received by the Opposite Parties. The Opposite Party No.1 did not give any reply to the said notice.  The Opposite Party No.2 replied the notice.  It is submitted that the Opposite Parties failed to discharge their obligation in terms of the guarantee given at the time of purchase of the said car. The copy of the notice dtd.18/09/08 and reply of Opposite Party No.2 dtd.23/09/08 are marked as Exh.‘J’.  It is submitted that the Opposite Parties No.1 & 2 had supplied a defective car and due to negligence on their part the Complainant had suffered loss on account of deprivation, harassment, mental agony, physical injury and therefore, both the Opposite Parties are jointly and severally liable to compensate the Complainant as claimed in para 1 of this order

8)        The Opposite Party No.1 contested the claim made by the Complainant by filing written statement.  It is submitted that the complaint suffers from misjoinder of party and non joinder of proper and necessary party namely M/s. Shrimankar Gas Car Services Pvt. Ltd.  According to the Opposite Party No.1 the Complainant wanted modification/alteration in the car from petrol to CNG, whereas, since the concerned car was sold to the Complainant by Opposite Party No.1 being a Dealer of Opposite Party No.2 at the request of the Complainant the Opposite Party No.1 got the conversion made through M/s. Shrimankar Gas Car Services Pvt. Ltd. which was within the knowledge of the Complainant.  It is submitted that Opposite Party No.1 gave its bill dtd.15/02/08 to the Complainant for the said job.  However, the Opposite Party No.1 could not give any warranty of the said CNG which was fitted into the concerned vehicle accordingly no warranty in respect of CNG which was fitted in the car was given by the Opposite Party No.1. It is submitted that since there was no warranty of CNG that was fitted in the car of the Complainant the Opposite Party No.1 is not liable/bound to give any service regarding CNG or any problem thereof.

 9)        According to the Opposite Party No.1 it had given warranty of 18 months in respect of the vehicle. Tata Indigo, GVS Petrol Car No.MH-02-JP-2514. It is contended that any modification/alteration made in the said vehicle thereafter was not covered in the said warranty given to the Complainant.  It is contended that there was no conversion of the vehicle from Petrol to CNG on the date of sale i.e. 06/02/2008. The same was done subsequent to sale as such, the original warranty which was attached to the vehicle i.e. on 06/02/08 cannot be extended to the subsequent alteration modification/more specifically, the CNG that was fitted in the concerned vehicle.  It is submitted that on this ground the complaint is liable to be dismissed.  It is contended that any grievance about CNG could be attributable to the actual supplier of CNG namely M/s. Shrimankar Gas Services Pvt. Ltd.  It is submitted that the Opposite Party No.1 is not guilty of deficiency in service as sought by the Complainant.  It is contended that the Opposite Party No.1 attended to few of the complaints of the Complainant as an when made by the Complainant, apart from free servicing which was required to be given as per the original warranty.  It is contended that though the Opposite Party No.1 was not bound to give any service as regards the CNG issues/  problems the Opposite Party No.1 yet with a view to help the Complainant directed to M/s. Shrimankar Gas Services Pvt. Ltd. for looking to the Complainant’s problem as the concerned car was converted into CNG from Petrol and the Opposite Party No.1 was mediator between them. It is thus, submitted that as the Complainant did not make Ms. Shrimankar Gas Services Pvt. Ltd. as party to this complaint the same is required to be dismissed.

 10)      It is contended that the Complainant had purchased Tata Indigo GVS Petrol Car by order dtd.18/01/08. The Opposite Party No.1 received all consideration from the Complainant for the original car on or before 06/02/2008.  It is submitted that the supply of car and converting it Petrol to CNG were totally different transaction. Subsequent/modification or changes that were made at the instance of the Complainant for which separate consideration was taken.  Conversion of the petrol car into CNG were governed by the second contract which was expressed in writing by separate invoice number SP-00028 for Rs.54,000/- dtd.15/02/08.  Copy of the said invoice is marked at Exh.‘1’.  It is contended that in the month of April, 2008 when the Complainant approached for certain problems the same were attended vide job card dtd.07/05/08.  It is denied that the Opposite Party No.1 did not respond to the Complainant’s problem.  The copy of job card dtd.07/05/08 is at Exh.‘2’. It is denied that the car started giving another problems as alleged by the Complainant. It is submitted that when the car was brought to the Opposite Party No.1 with certain problems the same were attended on 17/05/08.  It is contended that the problem regarding CNG was not within the warranty.  It is denied that the Complainant suffered grave inconvenience and monetary loss and he was required to spend Rs.2,000/- per day for hiring a car. It is denied that on 01/07/08 as the car automatically stopped in the middle of the road and the truck overtook the said car.  It is submitted that the said allegation is totally a figment of imagination and false to the knowledge of the Complainant.  It is further denied that due to problem in clutch gear CNG supply in the said car on 13/07/08, the Complainant again met with an accident and the car got totally damaged as alleged.  It is contended that for the alleged problems or damage to the car the Complainant never approached to the Opposite Party No.1 which shows that the alleged reason for accident was not attributable as mentioned by the Complainant.  It is further submitted, if the Complainant got car repaired by allegedly spending money, but no copy of the alleged bill has been attached to the complaint.  It is denied that the Complainant had suffered a lot of hardship due to supply of defective car to him as the car was lying in the workshop of Opposite Party No.1 every month as alleged.  It is denied that the Complainant has suffered monitory loss and was harassed mentally and physically throughout 5 months.  It is denied that the Complainant is entitled to refund of money of Rs.1,82,000/-.  It is contended that the total cost of the vehicle being Rs.4,46,640/- plus Rs.54,481/- towards RTO registration etc. the Complainant cannot claim Rs.1,82,000/- for no reason whatsoever nature.  The Opposite Party No.1 also denied the claim of Rs.1,00,000/- towards compensation as claimed. The Opposite Party No.1 therefore, prayed to dismiss the complaint with cost.   

 11)      The Opposite Party No.2 contested the claim by filing written version.  It is contended that the averment in the manufacturing defects are totally false. The allegations made by the Complainant in respect of the defects mentioned in the vehicle in question were required to be referred for appropriate testing u/s 13(1)(c) to (g) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  It is contended that the allegations are not supported by any laboratory report or any expert opinion and therefore, the claim is not supported by statutory requirement of the Act.  It is contended that as regards the allegation/problems related to CNG, the Opposite Party No.2 states that the CNG fitment is not approved by Tata Motors Ltd. for the model purchased by the Complainant.  It is denied that the car in question was lying with Opposite Party No.2 for 10-12 days of every month.  The claim made in the complaint is denied.  It is submitted that the allegations made in the complaint are vague, baseless and therefore, the complaint is liable to be dismissed.          

 12)      The Complainant has filed rejoinder of the complaint in view of the written statement filed by the Opposite Party No.1 & 2. The Opposite Party No.1 filed affidavit of Atul Mhaske, General Manager Service.  The Opposite Party No.2 filed evidence on affidavit of Bipin Palekar, Asst. General Manager (Law). The Complainant has filed written argument.  The Opposite Parties have also filed their written arguments.  We heard Vidya Mangavde, Ld.Advocate for the Complainant and Shri. Pratapchandra, Ld.Advocate for the Opposite Party No.1 and Smt. Anita Marathe, Ld.Advocate for the Opposite Party No.2.

 13)      Upon hearing the argument of both sides, going through the document filed by both sides and pleadings, the following points arise for our determination and our findings on the same are as under –

Point No.1 : Whether the Complainant proves that there is/was inherent manufacturing defects in the vehicle purchased by him from the Opposite Party No.1 ?

Ans.           :  Not proved.

Point No.2 :  Whether the Complainant proves that there is deficiency in the services rendered by the Opposite Parties ?

Ans.           :  Not proved.

Pont No.3 :  What order ?

Ans.           :  As per final order.

14)      As to all points – While considering the contention of the Complainant regarding the manufacturing defects in the vehicle which he had purchased he has only pleaded in the complaint that initially for two months the said car was running properly but thereafter in the month of April, 2008 the car started giving problems in gear, clutch and leakage in the battery, etc. He has also pleaded that apart from the mentioned problems there were also problems in engine and CNG supply of the said car.  To prove that he was facing such problems, the Complainant has not placed on record the job cards provided by the Opposite Party No.1 to show that the Opposite Party No.1 was informed with such problems and the same were not solved by the Opposite Parties. In the job card produced by Opposite Party No.1 alongwith its written statement at Exh.‘2’ & ‘3’ there is no mention that the aforesaid problems were brought to the notice of Opposite Party No.1 by the Complainant and the Opposite Party No.1 had neglected or not attended the said problems which the Complainant was facing.  It is pertinent to note that except the e-mails placed on record alongwith the complaint, the Complainant has not produced any documentary proof showing that the car purchased by him was having inherent manufacturing defects and the same were not attended by the Opposite Parties.

 15)      It is an admitted fact that at the instance of the Complainant the Opposite Party No.1 helped the Complainant to convert his petrol version car to CNG through M/s. Shrimankar Gas Car Services Pvt. Ltd. and for that the Complainant has paid extra amount to the Opposite Party No.1 to the tune of Rs.54,000/-.  The copy of the said document is filed on record by the Opposite Party No.1 with their written statement at Exh.‘1’. The Complainant has given special instructions for additional requirement while booking the car in the order form as regards CNG fitment.  The said document is placed on record with reply to the rejoinder of the Complainant by Opposite Party No.1 at Exh.‘1’.  The complaint therefore, made by the Complainant regarding CNG problems in our view cannot be entertained against the Opposite Parties as the Complainant himself had given in writing to make alteration in the car manufactured by the Opposite Party No.2.  Furthermore, the Complainant has also not joined M/s. Shrimankar Gas Car Services Pvt. Ltd. as party to this proceeding as he was knowing that the said work of CNG fitment was done by the said car services and therefore, the deficiency alleged by the Complainant as regards CNG problems cannot be entertained against the Opposite Parties.  It is also pertinent to note that as per clause 5 of the warranty terms and conditions, the warranty given by the Opposite Parties shall not apply, if the car or any part thereof is repaired or altered otherwise than in accordance with their standard repair procedure or by any person other than from the Opposite Parties sales or service establishments.  In the present case as at the instance of the Complainant the petrol version car purchased by the Complainant from the Opposite Party No.1 was altered to CNG version by M/s. Shrimankar Car Gas Services Pvt. Ltd. thus, in our view as per the aforesaid clause of warranty terms and conditions, the Complainant cannot allege the deficiency on the part of the Opposite Parties.  It is also pertinent to note that the Complainant after filing of the complaint has submitted an application before this Forum to appoint the Atomic Research Association of India, Kothrud – Pune for inspection and examination of the car in question.  The said application was allowed by this Forum, however, it appears that the applicant thereafter filed an application to proceed with the case without expert opinion.  The Complainant has thus, not placed on record the opinion of the expert which was incumbent upon him as per the provisions of Sec.13 of the Act.  Furthermore the defects which are mentioned in the complaint and e-mails relied upon by the Complainant are not supported and proved by any other evidence by the Complainant.  We therefore, hold that the Complainant has failed to prove that there is/was inherent manufacturing defects in the vehicle purchased by the Complainant from the Opposite Party No.1. In the authority relied by Smt. Anita Marathe, Ld.Advocate for the Opposite Party No.2 in the case of Tata Engineering and Locomotive V/s. Barchi Ram Dangwal, 2009 CTJ 506 (CP) (NCDRC) the Hon’ble National Commission held that unauthorized altering of the specification of the importance electro mechanical parts of a registered motor vehicle is against the provisions of Motor Vehicles Act, 1988, Chapter VII and VIII and the rules framed thereunder, such acts are prejudicial to the public safety.  It is also held that no reliable expert evidence brought on record by the Complainant that the truck suffered from any manufacturing defect and it therefore held that the Complainant is not entitled for the reliefs claimed before the State Commission and allowed the appeal.  In the present case also the similar facts are there and therefore, we hold that the Complainant has failed to prove the deficiency on the part of the Opposite Parties.  We also hold that the Complainant has failed to prove that there is/was inherent manufacturing defects in the vehicle purchased by him from the Opposite Party No.1. 

 16)      The Complainant has come out with the case that on 01/07/2008 he met with an accident on highway near Thakur Complex, Kandivali and thereafter on 13/07/2008 at Palm Beach Road, New Mumbai and in the second accident the car of the Complainant got totally damaged.  It is alleged that the Complainant again gave said car for servicing.  It is submitted that the Complainant had spent Rs.19,500/- and the document regarding it i.e. bill dtd.16/07/08 is marked as Exh.‘G’ to the complaint, however, on the perusal of the documents filed with the complaint, it appears, that the document at Exh.‘G’ is not at all placed on record, as the document at Exh.‘E’ is at page 26 and the document at Exh.‘F’ is at page 27 with the complaint. Furthermore, according to the Opposite Party No.1, the Complainant never approached to it after the alleged accidents necessarily show that the contention raised by the Opposite Parties that the said allegations are based on imagination and false to the knowledge of the Complainant can be accepted as proper.  It is also pertinent to note that if the total damage of the car due accident could have been there the police might have registered the offence regarding such accidents under Criminal Acts.  However, the Complainant has not produced any such documents to prove that the alleged accidents had occurred and in the police record the same were registered.  The document placed on record by the Opposite Party No.2 with its written statement at Exh.‘2’ & ‘3’ show that the Opposite Party No.1 had tried to attend the problems faced by the Complainant. The letter dtd.25/12/2008 issued by the Opposite Party No.1 placed on record by the complaint also suggest that the Opposite Party No.1 had requested the Complainant to sent his vehicle to the workshop of the Opposite Party No.1 for getting it repaired to his satisfaction and also offered a citrusy car for the time being his car would be with the Opposite Party No.1 necessarily show that the Opposite Party No.1 had shown interest to solve the problems alleged to be faced by the Complainant regarding his car but the Complainant did not respond to it and filed the present complaint necessarily show that the same were imaginary.  It is also pertinent to note that the Complainant claimed refund of purchase money of Rs.1,62,500/- and cost of Rs.19,500/- amounting to Rs.1,82,000/- from the Opposite Parties against the total cost of the vehicle being Rs.4,46,640/- plus Rs.54,481/- towards insurance and RTO Registration, etc. in our view the Complainant has not proved how the claim made in the complaint of Rs.1,82,000/- as claimed can be entertained against the total consideration paid to Opposite Party No.2.  The Complainant has also not produced any bill of repairs of Rs.19,500/- which is alleged to have been produced at Exh.‘G’.  The Complainant has also not produced any document showing that he used to pay Rs.2,000/- per day for 50 days prior to filing of this complaint and after purchase of the car in question and therefore, he is entitled to an amount of Rs.1,00,000/- towards the said expenditure from the Opposite Parties.  We therefore, hold that considering all these facts and the discussion made above the Complainant has miserably failed to prove his claim made in the complaint.  In the result we answer the point no.1 & 2 in the negative and pass the following order –

O R D E R

i.                    Complaint No.233/2008 is dismissed with no order as to cost.

ii.                 Certified copies of this order be furnished to the parties.