KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 818/2015 & 834/2015

COMMON JUDGMENT DATED: 13.07.2023

(Against the Order in C.C. 76/2012 of CDRC, Thrissur)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

APPEAL No. 818/2015

APPELLANT:

The General Manager, Hyson Motors Pvt. Ltd., Poonkunnam, Thrissur.

                                       (By Adv. G.S. Kalkura)

                                                Vs.

RESPONDENTS:

1. Aby Benny, Maduthumpadikkal House, Near St. Sebastian Church, Muringoor, Chalakkudy.

2. The Chairman, TATA Motors, Bombay House-24, HOMI-MODI Street Road, Mumbai, Maharashtra.

3. The General Manager, Tata Motors, Bombay House-24, HOMI-MODI-Street Road, Mumbai, Maharashtra.

4. The Territory Head, Tata Motos, Padivattom, Ernakulam.

            (By Advs. V. Krishna Menon & S. Reghukumar for R2 to R4)

APPEAL No. 834/2015

APPELLANTS:

1.  The Chairman, TATA Motors, Bombay House-24, HOMI-MODI Street Road, Mumbai, Maharashtra.

2. The General Manager, Tata Motors, Bombay House-24, HOMI-MODI-Street Road, Mumbai, Maharashtra.

3. The Territory Head, Tata Motos, Padivattom, Ernakulam.

            (By Advs. V. Krishna Menon & S. Reghukumar)                            

                                                Vs.

RESPONDENTS:

1. Aby Benny, Maduthumpadikkal House, Near St. Sebastian Church, Muringoor, Chalakkudy.

(By Adv. Smitha C. Gopi)

2. The General Manager, Hyson Motors Pvt. Ltd., Poonkunnam, Thrissur.

(By Adv. G.S. Kalkura)

COMMON JUDGMENT

SMT. BEENAKUMARY A. : MEMBER

These two appeals are filed against the order in C.C. No. 76/2012 on the file of the Consumer Disputes Redressal Forum, Thrissur, (District Forum for short) allowing the complaint.  Aggrieved by the above order the 4^th opposite party has filed Appeal No. 818/2015 and opposite parties 1 to 3 have filed Appeal No. 834/2015.

2.   Facts of the case are as follows: The complainant had purchased a Tata Indica Vista Car from the 4^th opposite party, on 23.09.2009, under the influence of the advertisement and the direct discussion with the opposite party that the vehicle was free from any manufacturing or mechanical defect and also free periodical services. The complainant had maintained the vehicle, as per the instruction manual and also taken the vehicle regularly for periodical services. The case of the complainant is that shortly after delivery, the vehicle started emitting unusually dark smoke through the exhaust. The complainant pointed out the problem to the 4^th opposite party at the time of servicing, when the vehicle had completed 20,000 Kms. Subsequently the complainant had to bring the vehicle to the 4^th opposite party, for repairs, four times. Each time, it took four days to one week for the return of the vehicle after repairs. The problem continued to exist and hence the complainant sent a lawyer notice on 08.08.2011, to rectify the defects of the vehicle, under the supervision and guidance of technical expert, within a week of the receipt of the notice. Subsequently, the vehicle was brought to 4^th opposite party on 24.08.2011, for rectifying the complaint. The vehicle was delivered back on 13.09.2011 stating that the engine has been replaced. But the problem still continued and when the matter was informed to 4^th opposite party, he never turned up. The warranty period expired on 23.09.2011 and the vehicle covered only 50,000 Kms. According to the complainant, since he had never driven the vehicle rashly and had done the services only at authorized service stations, the unusually dark smoke is only due to the engine trouble and thereby manufacturing defect. The matter also points out the inadequacy of service and breach of the terms and conditions of service by 4^th opposite party. As a result of the complaint to the vehicle, the complainant had to hire private vehicles often for the last two years, leading to additional expenses. Hence the complaint was filed, with prayers to replace the vehicle by a new one, free from mechanical defects, in addition to compensation and costs. 

         3. In the version filed by 1^st and 3^rd opposite parties, it is stated that each vehicle manufactured by them maintains highest quality, since undergoing pre and post checks at all levels of manufacturing, servicing and repairs and also since the approval of Automotive Research Association of India is obtained. In addition, checking by the Quality inspector and Diagnostic expert cum trainer is also conducted to ensure quality workmanship. Also the service advisor provided proper job explanation to the customer and even provides demo/test drive to the customer and thereby ensures consumer satisfaction, after every service/repair. Whenever the complainant took the vehicle to the workshop of 4^th opposite party, with any alleged complaint, the same had been looked into, very carefully and the vehicle delivered back after repairs, to the full satisfaction of the complainant. Hence there is no deficiency of service.  Moreover, the allegation of manufacturing defect is without any expert opinion or documentary evidence. As such, all allegations are denied and misconceived and without any merit and hence the complaint be dismissed with cost. 

         4. The 4^th opposite party, in the version filed, states that since he is only a dealer the manufacturer alone is responsible for manufacturing defects, if any. The allegation of unusually dark smoke is not correct. It has been convinced to the complainant at the time of servicing and thus servicing has been conducted to the satisfaction of the complainant. Hence the complaint be dismissed with costs.

          5.  In this case the complainant has produced 8 documents which were marked as Exts. A1 to A8.  The complainant did not produce proof affidavit or any oral evidence.  Opposite parties also not filed proof affidavits.  Exts. A1 to A3 show that the vehicle has been entrusted to the 4^th opposite party for service on 12.10.2011, 08.08.2011 and 06.12.2011 and to rectify the problem of over smoke discharge. Exts. A6, A7 and A8 are the invoices issued by the 4^th opposite party.  Ext. A4 is the lawyer’s notice to the 1^st opposite party issued by the complainant.

          6.  The findings of the District Forum were that the main complaint of the vehicle was that the vehicle has been emitting unusually dark smoke through the exhaust.  The problem started shortly after delivery and has been pointed out to the 4^th opposite party when the vehicle had completed only 20000 kms.  The vehicle had been brought four times to repair the same problem.  The complainant approached the District Forum because the problem was not rectified by the opposite parties.  Before he filed this complaint a lawyer’s notice was sent to the 1^st opposite party.  The District Forum stated that being the manufacturers 1^st and 3^rd opposite parties were bound to convince the District Forum that the vehicle has no problem as alleged.  They did not produce any evidence to prove that the vehicle was problem free of the defects alleged.  The District Forum stated that if the opposite parties are sure about the good condition of the vehicle, they would have undoubtedly came to prove this at least with an expert opinion.  In that situation the District Forum was compelled to redress the grievances of the complainant. Hence the District Forum directed the opposite parties to replace the vehicle with a defect free new one.  The 4^th opposite party was directed to pay Rs. 50,000/- as compensation and costs.  Aggrieved by this order the 4^th opposite party has filed Appeal No. 818/2015 and opposite parties 1 to 3 have filed Appeal No. 834/2015 before this Commission.

7.  The appellant in Appeal No. 818/2015 stated that the complaint was hopelessly barred by limitation and the complaint had not involved the application of Sec. 24 A.  The allegation is that the vehicle started emission of dark smoke immediately after taking delivery of the vehicle.  The vehicle was taken delivery on 22.09.2009.  The complaint is filed only on 17.02.2012 after the expiry of the period of two years contemplated under Sec. 24 of the Consumer Protection Act. 

8.  The District Forum allowed the complaint without any evidence.  The complainant has not even filed proof affidavit and marked the document without an affidavit or oral evidence.  The District Forum ought to have held that even assuming that Exts. A1 to A7 were to be looked into they would not indicate any manufacturing defect.  On the other hand, there were only service records for the usual service.  On all the times the vehicle was brought though there was a complaint regarding smoke as alleged by the complainant and that were other mechanical repairs required on account of the use of the vehicle.  When the vehicle was taken delivery after the repair the complainant had acknowledged with full satisfaction of the work by the 4^th opposite party. 

9.  The appellant/4^th opposite party alleged that the District Forum ought to have found that the burden of proof had not been discharged by the opposite parties 1 to 3 and went wrong in allowing the complaint as against the 4^th opposite party.  Hence the 4^th opposite party prayed for allowing the appeal. 

10.  Appellants in Appeal No. 834/2015 stated that the specific case of the complainant was that the vehicle purchased by him suffered from manufacturing defects.  The complainant had not produced any material whatsoever to prove the alleged manufacturing defect in the vehicle.  It is a settled principle of law that claim pertaining to manufacturing defects could be sustained only if it is proved by having the vehicle inspected by an expert.  Further as per Sec. 13(1)(c) of the Consumer Protection Act 1986, the District Forum could render a finding only if the allegation raised in the complaint is proved in the manner prescribed under the Act.  In this case the complainant had not taken any steps to take any expert opinion to prove that the vehicle was having manufacturing defects as alleged.  A perusal of the job slips only go to show that there was complaint in the vehicle.  That by itself could not be a proof enough for treating the complaints as inherent defects.  Only on the basis of the slip of the job card the District Forum allowed the complaint. 

11.  The finding of the District Forum is totally against the principles of law which requires that he who pleads the positive has to prove the same.  It is a further settled principle of law as held by this Commission in the decision reported in 11 (2201) CPJ 422(Ker) that the onus is on the person who alleged the positive. 

12.  We have heard both sides and perused the entire records.  The District Forum allowed the complaint without any proof.  The complainant has produced job slips regarding the over discharge of black smoke.  The opposite party repaired the defects and the complainant satisfactorily had taken the vehicle. 

13.  The complainant had purchased the car in the year 2009.  The repair occurred only in 2011, till then the vehicle had no defects and no repair has been needed.  The complainant alleged that from the beginning of its purchase the vehicle started emitting unusually dark smoke through the exhaust.  But he had not produced any evidence to show that aspect.  We confirm that the complainant had used the car without any problem till 2011.  If any manufacturing defects had in the vehicle it is impossible to use the car continuously for three years. 

14.  The complainant in this case did not produce any evidence to prove that the vehicle has inherent manufacturing defect.  He did not file even proof affidavit before the District Forum to prove his case.  He had only produced 3 job slips regarding the emitting of smoke.  It is the duty of the complainant to prove his case beyond doubt.  As per Sec. 13(1)(1) to prove this type of manufacturing defect expert opinion is required.  But the complainant did not turn up to take expert commission to prove his case. The onus of proof is always on the complainant.  Here the disputed vehicle is within the custody of the complainant.  He is continuously using the vehicle. 

15.  The order passed by the District Forum is not sustainable for want of ample evidence and proof.  The District Forum erroneously allowed the complaint.  Hence the order passed by the District Forum in C.C. No. 76/2012 is set aside. 

In the result, Appeal Nos. 818/2015 and 834/2015 are allowed and the complaint C.C. No. 76/2012 stands dismissed.  No order of costs.

The appellants have the right to withdraw the amount deposited by them in connection with this appeal.    

AJITH KUMAR  D. : JUDICIAL MEMBER                          

                                                                        BEENA KUMARY. A         : MEMBER  

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