KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM
OP.NO: 73/2002
JUDGMENT DATED: 18-10-2010
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
Dr.Abraham.P.Sam,
Poyanil Hospital,
Kozhencherry-689 645, : COMPLAINANT
Kozhencherry.P.O,
Muri, Village & Taluk.
(By Adv:Sri.K.Muraleedharan Nair)
Vs.
1. Benz Motors,
Now known as M/s Focuz Motors,
Benz Towers, Edappally,
Kochi-682 024, R/by its
Managing Director.
2. Benz Motors,
Now known as M/s Focuz Motors,
Thekkemala.P.O, Kozhencherry,
R/by its Manager.
(OP1 & 2 by Adv: Sri.U.K.Ramakrishnan & Sri.V.Krishna Menon)
3. TELCO,
Now known as Tata Motors Ltd.,
Marketting and customer support, : OPPOSITE PARTIES
Passenger Car Division,
26th Floor, Centre No.1,
World Trade Centre, Cuffe Parade,
Mumbai-400 005,
R/by its Managing Director.
4. TELCO,
Now known as Tata Motors Ltd.,
Kandomkulathy Towers,
4th floor, Opposite Maharaja’s College Ground,
M.G.Road, Cochin-682 001,
R/by its Manager.
(OP3 & 4 by Adv:M/s Menon & Menon)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Complaint filed for getting replacement of the vehicle or to get refund of cost of the vehicle with compensation of Rs.1.lakh and cost.
2. The case of the complainant is as follows:-
Complainant is an Orthopedic Surgeon by profession. He purchased a Tata Indica Passenger Car for his personal use. It was purchased from opposite parties 1 and 2 viz, Benz Motors, subsequently known as M/s Focus Motors. They were the authorized dealers of the opposite parties 3 and 4 viz, Telco, subseuquently known as Tata Motors Ltd. The aforesaid vehicle was manufactured by Tata Motors and sold to the complainant through the authorized dealers Benz Motors. The said vehicle was purchased on 24/1/2000 with warranty for 36 months. The 3rd opposite party/manufacturer gave warranty for 18 months and the 1st opposite party Benz Motors gave an extended warranty for another 18 months. Thus, the car was having the warranty from 24/1/2000 to 23/1/2003. The aforesaid car purchased by the complainant from the opposite parties has been exhibiting defects. The aforesaid car was having manufacturing defects. The complainant got his car repaired at the workshop of the 1st opposite party, authorized dealer on 25/3/2000, 4/7/2000, 27/7/2000, 16/8/2000, 25/8/2000, 26/9/2000, 5/8/2000, 17/10/2000, 30/11/2000, 18/1/2001, 3/2/2001, 1/3/2001, 11/4/2001, 30/5/2001, 14/7/2001, 4/12/2001 & 6/12/2001 for various defects including replacement of defective parts. Inspite of repeated repairs and replacement of spares the car developed defects one after the another. All the troubles developed because of the manufacturing defect of the vehicle. The complainant being a consultant Orthopedic Surgeon hired vehicle for his personal use because of the fact that the vehicle had left at the workshop of the 1st opposite party on many occasions. The car got repaired at the workshop of the 1st opposite party for more than 100 times. The complainant had also lost his clients because of the non availability of the complainant as doctor; the complainant suffered a loss at the rate of Rs.2000/- per day. He also spent additional expenses at the rate of Rs.1000/- per day for hiring vehicles. The vehicle purchased by the complainant is beyond repair and it is causing much hardship, financial loss, mental agony, stress and distress to the complainant. Thus, the complainant prayed to get the defective vehicle replaced with a new vehicle or to get the price of the vehicle refunded with interest at the rate of 12% per annum. The complainant has also claimed compensation of Rs.1.lakh for the mental pain, stress, agony and financial loss suffered by the complainant with cost of the proceedings.
3. Opposite parties 1 and 2 entered appearance and filed version contending as follows:-
The complaint is not maintainable either in law or on facts. The Hon’ble Commission has no jurisdiction to entertain the complaint. The complaint is bad for misjointer of parties. No deficiency of service has been alleged against the opposite parties 1 and 2. The Tata Indica Car purchased by the complainant on 24/1/2000 is not having any defect or manufacturing defect. The complainant availed the additional warranty provided by opposite parties 1 and 2. The complainant took delivery of the vehicle on inspection and on satisfaction. The complainant brought his vehicle to the workshop of the opposite parties on various occasions during the period from 25/3/2000 to 6/12/2001 pointing out various defects in the vehicle. On inspection it was found that no such defect is in existence. There were only minor defects which were rectified to the satisfaction of the complainant. On certain occasions the vehicle was brought after it had met with an accident. The complainant took delivery of the vehicle after effecting repairs on his satisfaction. The allegation that the vehicle is beyond repair is baseless and the same is denied. The complainant never brought the vehicle to the opposite parties with the complaint like excess smoke, fumes, low pulling, low mileage, oil leakage, high engine noise, gear box complaint etc. The aforesaid allegations are made without any merit and basis. The opposite parties have not caused any mental agony, inconvenience or financial loss to the complainant. The complainant has not incurred any additional expense at the rate of Rs.1000/- per day. The complainant is not entitled to get the vehicle replaced or to get refund of the price of the vehicle. He is also not entitled to get any compensation from the opposite parties. Thus, the opposite parties 1 and 2 prayed for dismissal of the complaint with cost.
4. Opposite parties 3 and 4 entered appearance and filed written version accepting the contentions adopted by the opposite parties 1 and 2. They also denied the alleged deficiency of service. They further contended that there was no defects much less manufacturing defect in the vehicle. Thus, the opposite parties 3 and 4 also prayed for dismissal of the complaint with cost.
5. The complainant filed proof affidavit. Exts.A1 to A21 documents were also produced and marked on the side of the complainant. The Deputy General Manager of M/s Benz Motors filed proof affidavit on behalf of opposite parties 1 and 2. Exts.B1 series of repair order forms (45 in number) are marked on the side of the opposite parties 1 and 2. The customer support engineer of M/s Tata Engineering and Locomotive Company Ltd has filed proof affidavit on behalf of opposite parties 3 and 4. No document has been filed from the side of the opposite parties 3 and 4.
6. We heard the learned counsel for the complainant and opposite parties 1 to 4. They also filed argument notes in support of their oral submissions.
7. The points that arise for consideration are:-
1. Whether the complaint in this OP.73/02 is maintainable in law?
2. Whether the complainant has succeeded in establishing his case that the opposite parties 1 to 4 effected sale of a defective vehicle by virtue of the sale of the Tata Indica Passenger Car on 24/1/2000?
3. Whether the vehicle purchased by the complainant from the opposite parties 1 to 4 was having any manufacturing defect as alleged?
4. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties 1 to 4 in effecting sale of the Tata Indica car to the complainant on 24/1/2000?
5. Whether the complainant is entitled to get the vehicle purchased on 24/1/2000 replaced with a new vehicle or to get refund of the price of the vehicle with interest?
6. Whether the claim for compensation of Rs.1.lakh is sustainable?
7.
8. Point No.1
There is no dispute that the complainant purchased a brand new Tata India Passenger Car from opposite parties 1 to 4 on 24/1/2000. The aforesaid car has been registered with the Regional Transport Authority with registration No.KL-3-E/8020. Admittedly opposite parties 1 and 2 are the authorised dealers of the said vehicle which was manufactured by opposite parties 3 and 4. Ext.A1 is the warranty provided for the said vehicle. There is no dispute that the said vehicle which was purchased by the complainant from the opposite parties was having the warranty for 3 years ranging from 24/1/2000 to 23/1/2003. The complaint herein was filed in the year 2002. Thus, the complaint is filed within the warranty period.
9. The definite case of the complainant is that the said vehicle is having manufacturing defect and other defects and that the said vehicle became a second hand one and it is beyond repair. The complainant has categorically alleged deficiency in service and unfair trade practice on the part of the opposite parties. The contention of the opposite parties that no deficiency of service has been alleged against them cannot be accepted. In paragraph 11 of the written complaint it is pleaded that there is deficiency in service, unfair trade practice employed by the opposite parties. More over, it is also pleaded that the vehicle sold to the complainant on 24/1/2000 is having manufacturing defect and that the vehicle had been brought to the workshop of the authorized dealers on many occasions; but the vehicle developed defects one after the other. So, the complaint filed against opposite parties 1 to 4 (the authorized dealers and manufacturers of the Tata Indica Passenger Car) can be treated as maintainable. The contention of the opposite parties that the complaint is not maintainable cannot be upheld.
10. It is to be noted that the complaint in OP.73/02 was filed at the first instance before the CDRF, Pathanamthitta where the complaint was numbered as OP.19/02 and subsequently, CDRF, Pathanamthitta vide order dated:5th June 2002 returned the complaint for presentation before proper authority, as the CDRF, Pathanamthitta was not having the pecuniary jurisdiction to entertain the said complaint. It is also stated in the said order that cost of the Tata India Car would come to Rs.4,09,000/- and the compensation claimed by the complainant is Rs.1.lakh. Thus, the CDRF, Pathanamthitta is not having the pecuniary jurisdiction. On presentation of the said complaint before this commission it is numbered as OP.73/02. Thus, in all respects the complaint in OP.73/02 is held as maintainable. This point is answered in favour of the complainant.
11. Point Nos.2 to 6.
The complainant purchased the disputed Tata Indica Passenger car from the opposite parties on 24/1/2000. It is having 3 years warranty from 24/1/2000 to 23/1/2003. As per Ext.A1 warranty the aforesaid car was provided 18 months warranty by the Tata Motors and the extended warranty, of another 18 months by the dealers Benz Motors. The complainant has categorically averred in paragraph 4 of the complaint about the various dates on which the aforesaid car was repaired at the workshop of the authorized dealers namely Benz Motors. It is also averred that various spare parts were replaced at the instance of the authorised dealers. The aforesaid categoric averments regarding the repairs and replacement of spares are not disputed by the opposite parties. The aforesaid case of the complainant is supported by A2 series of bills (45 in number) issued by Benz Motors regarding the spare parts used for effecting repairs. It is to be noted that the opposite parties have not challenged the genuineness and correctness of Ext.A2 series of bills produced from the side of the complainant. The said case of the complainant is further fortified by Ext.B1 series of repair order forms. It would establish the case of the complainant that the vehicle purchased by the complainant on 24/1/2000 has developed various defects during the warranty period. There can be no doubt about the fact that in the ordinary course a brand new vehicle would not develop such defects. It is further to be noted that so much of spare parts were replaced during the warranty period itself. This circumstance would speak volumes about the nature and condition of the vehicle which is sold to the complainant. An appraisal of Ext.A2 series of bills issued with respect to the purchase of spare parts would make it abundantly clear that the said Tata Indica Car which was purchased by the complainant on 24/1/2000 was having some inherent defects. It can be seen that ball joint, V-belt and power steering belt of the said vehicle had been replaced repeatedly. Ext.A2 series of bills would show that the ball joint STG-TALVR was replaced on 27/7/2000, 26/9/2000, 30/11/2000, 11/4/2001, 30/5/2001, 4/12/2001, 23/10/2002, 18/12/2002, 11/9/2003. Likewise spare parts like V-belt and power steering belt were also replaced repeatedly. There are other spare parts which also replaced repeatedly. The aforesaid replacement of the spare parts for a new vehicle during the warranty period itself would give a clear indication that there was something wrong with the said vehicle. It would in turn give an inference that the said vehicle was having inherent defect and it resulted in replacement of the spare parts repeatedly.
12. The evidence on record would show that the tyres of the said vehicle were replaced at an early state. The bill dated:19/1/2001 (A2 series) issued by Benz Motors would make it clear that the two tyres of the said vehicle were changed when the vehicle covered a distance of 17319Kms. It would also show that the complainant had paid a sum of Rs.2,183/- on 10/1/2001 towards the depreciation charge for the said two tyres. The fact that the complainant was compelled to get the two tyres replaced at an early stage would make it clear that there was something wrong with the said vehicle. Ext.A2 series of bills would also support the case of the complainant that due to the defect in the said vehicle he used to get the wheel balancing done repeatedly on several occasions. It would also show that the complainant has been incurring amounts to get the wheel alignment checked repeatedly by spending Rs.225/- each on all those occasions. The documentary evidence (A2 series) would make it crystal clear that wheel alignment and wheel balancing were frequently done.
13. Ext.A18 series of reports issued by the authorized dealer Benz Motors would show that the wheel alignment and wheel balancing were done on several occasions for the said vehicle. This would strengthen the case of the complainant that there was something wrong with the said vehicle which resulted in causing damage to the tyres of the vehicle. Exts.A15 to A17 documents would show the amounts spent by the complainant for the purchase of tyres for the said vehicle. Exts.A19, to A21 documents would show that the manufacturer of Bridgestone tyres was reluctant to replace the defective/damaged tyres. The manufacturer of the said tyres was of the opinion that there was no manufacturing fault or defect for the said tyres and thereby they rejected the claim preferred by the complainant. The aforesaid communications between the manufacturer of the tyres and the complainant would show that the tyres of the said vehicle used to get damaged resulting in repeated replacement of the tyres. Thus, it can very safely be concluded that there was something wrong with the wheel alignment of the vehicle and it resulted in causing damage to the tyres.
14. Exts.A3 to A14 correspondence between the complainant and the opposite parties 1 to 4 and their officials would make it clear that the complainant was requesting the opposite parties to get the defects developed by the vehicle repaired. Those correspondence would also make it clear that there were inherent defects in the vehicle and it resulted in causing financial loss, mental agony and inconveniences to the complainant. It can be concluded that there was deficiency of service on the part of the opposite parties 1 to 4 in effecting sale of a defective vehicle to the complainant.
15. The complainant has got a case that the vehicle covered by Ext.A1 warranty was having manufacturing defect and resulted in getting the vehicle repaired repeatedly during the warranty period itself. An appraisal of Ext.A1 warranty with the terms and conditions incorporated therein, it can be seen that the warranty for a period of 3 years is given for replacement of defective parts of the vehicle and also for free service. Nowhere in Ext.A1 warranty is stated that the vehicle will be replaced if it is found defective. It is true that if a brand new vehicle has got such serious manufacturing defect and that it is found that the defects could not be satisfactorily rectified, then the manufacturer will be liable to replace the defective vehicle having manufacturing defect or to refund the price of the vehicle irrespective of the terms and conditions incorporated in the warranty.
16. It is also a settled position that the burden is upon the complainant/purchaser to substantiate his case regarding manufacturing defect to such an extent that it is impossible to rectify those manufacturing defects. But in the present case, the complainant/purchaser (consumer) has not adduced any expert evidence to substantiate his case that the vehicle he purchased from the opposite parties cannot be rectified. In other words, it is for the complainant to substantiate his case that the said vehicle is beyond repairs. The complainant has not taken any earnest and sincere attempt to get the vehicle inspected by an expert Automobile Engineer to report about the condition of the vehicle as to whether the vehicle is beyond repair or not. In the absence of any such cogent evidence it is rather impossible to hold that the vehicle is beyond repairs or that the defects in the vehicle could not be rectified.
17. The documentary evidence available on record, especially A2 series of bills and A3 to A21 documents would show that the vehicle which was purchased by the complainant from the opposite parties was developing so many defects during the warranty period itself. It would also show that the vehicle developed defects one after the other and thereby the complainant/consumer was compelled to bring the vehicle to the workshop of opposite parties 1 and 2 for getting the same repaired. So, one can very safely be concluded that the said vehicle was having some inherent defects. The aforesaid case of the complainant is further strengthened by Ext.B1 series of repair order forms produced from the side of opposite parties 1 and 2. Thus, the opposite parties 1 to 4 were legally bound to rectify the defects developed by the said vehicle during warranty period.
18. Ext.A2 series of bills would also give an indication that at a later stage during the warranty period itself the opposite parties 1 and 2 collected repair charges and spare parts charges from the complainant. The aforesaid action on the part of the opposite parties would amount to deficiency of service. We have already held that the opposite parties are guilty of deficiency of service and unfair trade practice in effecting sale of a defective vehicle to the complainant.
19. The present complaint has been filed before the CDRF, Pathanamthitta on 16/1/2002 and subsequently it was returned to the complainant for presentation before proper authority vide order dated:5/6/2002. Thereafter the complaint was filed before this State Commission on 12/6/2002. The complainant purchased the aforesaid vehicle from the opposite parties on 24/1/2000. It can be seen that the present complaint is preferred after the lapse of 2 years from the date of purchase of the vehicle. As per Ext.B1 series of repair order forms, the complainant plied the aforesaid Tata Indica Car for covering a distance of 64905Kms. The repair order form dated 5/6/2003 (B1 series) would show that on 5/6/2003 the said vehicle had covered a distance of 64905Kms. This would further show that the complainant used to get the vehicle repaired at the workshop of the 1st opposite party, Benz Motors, even after the institution of the complaint herein. This circumstance would give an indication that the complainant has been using the said vehicle continuously. It may be correct to say that the complainant had to suffer mental agony, inconveniences, discomforts and financial loss on account of the defects repeatedly developed by the vehicle. But at the same time, the complainant has been using the said vehicle with much difficulties or inconveniences. This circumstance would make the claim of the complainant to get the vehicle replaced by another brand new vehicle unsustainable and unacceptable. The aforesaid circumstance would also make it clear that the prayer for refund of the price of the said vehicle is also unreasonable and unfair. Moreover, the request for replacement of the vehicle or for refund of the price of the vehicle could not be allowed in view of the terms and conditions incorporated in Ext.A1 warranty provided for the said vehicle. So, the only course available is to direct the opposite parties to make the said vehicle in a roadworthy condition by effecting necessary repairs including replacement of the defective parts. In other words, the opposite parties are to be made jointly and severally liable to make the vehicle a defect free vehicle at free of cost.
20. There can be no doubt about the fact that the complainant had to incur expenses for hiring another vehicle as and when the disputed vehicle was given to the opposite parties for effecting repairs. The complainant also faced difficulties, inconveniences and discomforts because of the defects developed by the vehicle which he purchased from the opposite parties on 24/1/2000. Thus, the complainant also suffered financial loss. Considering all these aspects and the fact that the complainant has been suffering inconvenience and financial loss for a continuous period from 24/1/2000 a compensation of Rs.50,000/- is ordered. The opposite parties 1 to 4 are made jointly and severally liable to pay the aforesaid compensation of Rs.50,000/- within one month from the date of this order, failing which the said amount will carry interest at the rate of 9% per annum from the date of this order till realization. The opposite parties are also liable to effect the necessary repairs including replacement of the defective parts and to make the said vehicle in a roadworthy condition at free of cost. The said repair work including replacement of the defective parts is to be done within one month from the date of production of the vehicle before the 1st opposite party, the authorized dealer of the opposite parties 3 and 4. These points are answered accordingly.
In the result the complaint in OP.73/02 is allowed to the extent as indicated above. Thereby, opposite parties 1 to 4 are made jointly and severally liable to make the said vehicle purchased by the complainant from the opposite parties in a roadworthy condition by effecting necessary repair works including replacement of defective parts at free of costs. The aforesaid rectification of defects will be done within one month from the date of production of the defective vehicle before the 1st opposite party, Benz Motors, Kochi now known as M/s Focus Motors. In the event the opposite parties failed to effect the aforesaid rectification works they will be jointly and severally liable to pay compensation of Rs.2.lakhs to the complainant and in that event the said compensation of Rs.2.lakhs will carry interest at the rate of 9% per annum from the date of this order. The opposite parties 1 to 4 are also made jointly and severally liable to pay compensation of Rs.50,000/- to the complainant for the mental agony inconveniences, discomforts and financial loss suffered by the complainant. The aforesaid compensation is to be paid within one month from the date of receipt of copy of this order, failing which the aforesaid amount will carry interest at the rate of 9% per annum from the date of this order till payment. The complainant is also entitled to get Rs.2000/- by way of cost.
M.V. VISWANATHAN: JUDICIAL MEMBER
VALSALA SARANGADHARAN: MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
A P P E N D I X
COMPLAINANT’S EXHIBITS
Ext.A1 : Copy of warranty.
Ext.A2 : Bills issued by the 1st and 2nd opposite parties.(46 in
number).
Ext.A3 : Copy of letter dated:6/7/2003 issued by complainant
to the 3rd opposite party.
Ext.A4 : Copy of letter dated:14/5/2001 issued by complainant
to the 4th opposite party.
Ext.A5 : Copy of letter dated:20/5/2001 sent by complainant
to the Chairman of Telco.
Ext.A6 : Copy of letter dated:20/6/2001 sent by Complainant to
the General Manager, Telco.
Ext.A7 : Copy of letter dated:9/2/2002 sent by the complainant
to the Chairman of the 1st opposite party.
Ext.A8 : Copy of insurance policy No.101300/31/01/36035.
Ext.A9 : Letter dated:6-6-2000 issued by Personal Assistant to
Sri.Ratan tata to the complainant.
Ext.A10 : Letter dated:13/6/2000 issued by Manager of 3rd
opposite party to the complainant.
Ext.A11 : Letter dated:21/6/2000 issued by Assistant Manager of
the 4th opposite party to the complainant.
Ext.A12 : Letter dated:2/9/2000 issued by Assistant Manager of
the 4th opposite party to the complainant.
Ext.A13 : Letter dated:6/6/2001 issued by Manager-Service of the
1st opposite party to the complainant.
Ext.A14 : Letter dated:19/6/2001 issued by the Assistant Manager of the 4th opposite party to the complainant.
Ext.A15 : Bill dated:27/12/2001 of Tyre India, Thiruvalla.
Ext.A16 :Bill dated:18/5/2002 issued by Tyre Centre and Agencies, Thiruvalla.
Ext.A17 : Bill dated:3/5/2003 issued by Tyre Centre and Agencies,
Thiruvalla.
Ext.A18 : The results of the alignment test (9 in number)
Ext.A19 : Claim application Form and Claim advice letter dated:
1/11/2001 of the Bridgestone ACC India Ltd.
Ext.A20 : Copy of letter dated:14/12/2001 issued by complainant
to the Bridgestone ACC India Ltd.
Ext.A21 :Letter dated:26/12/2001 from Bridgestone ACC India
Ltd.
COMPLAINANT’S WITNESS
NIL
OPPOSITE PARTIES WITNESS
NIL
OPPOSITE PARTIES EXHIBITS
Ext.B1 : Series of repair order forms (45 in number).
M.V. VISWANATHAN: JUDICIAL MEMBER
VALSALA SARANGADHARAN: MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
