BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.208 of 2014

Date of Instt. 26.06.2014

Date of Decision :10.04.2015

Mansa Ram aged about 85 years son of Pinja Ram R/o R-218, Dera Beas, Village Bal Sarai Khurd, Tehsil Baba Bakala Sahib, Amritsar.

..........Complainant

Versus

1. Cargo Motos Pvt.Ltd, Tata Motos, Cargo House, BSF Chowk, Jalandhar through its Director/General Manager.

2. Tata Motors Ltd, Bombay House, 24, Homi Mody Street, Fort, Mumbai-400001 through its Director.

.........Opposite parties

Complaint Under Section12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.DK Gupta Adv., counsel for complainant.

Sh.Avtar Manmohan Singh Adv., counsel for OP No.1.

Sh.VK Attri Adv., counsel for OP No.2.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the opposite party No.2 is the manufacturer of Nano Car and opposite party No.1 is authorized dealer of opposite party No.2. The complainant went to showroom of opposite party No.1 for purchase of brand new Tata Nano Car and the officials of opposite party No.1 represented that if the complainant would purchase brand new Tata Nano Car Model 2013, then additional discount would be given. Complainant agreed to their offer and they showed one Tata Nano Car saying that the same would cost him around Rs.2.10 Lacs. Accordingly complainant purchased one Nano car (Model 2013) bearing temporary No.PB-08-BN-2123 (Temp) on 28.2.2014 from opposite party No.1 and paid the entire amount of Rs.2.10 Lacs i.le Rs.40,000/- cash and Rs.1.70 Lacs by demand draft. When complainant took the above car for first free service to Tata showroom at Raiya on 2.4.2014, then the employees of authorized service station refused to service of the said vehicle, saying that above car has already undergone accidental repairs and some major parts of the car had been repaired and replaced on 10.8.2013 and as such they refused to provide free service. Listening these words, the complainant was shocked as he had purchased the car on 28.2.2014 from opposite party No.1 then how it had met with an accident on 10.8.2013. Said fact is further fortified from the cutting made on the vehicle identification and vehicle record issued by the opposite party No.2. The complainant went to opposite party No.1 and requested them to refund the amount received from him alongwith all incidental expenses and to take back the said vehicle as it was accidental vehicle as told by service centre at Raiya and verified from customer care of opposite party No.2 but the officials of opposite party No.1 refused to listen anything and started giving allurements of free services to the complainant but the complainant was aggrieved with the act and conduct of opposite party No.1. A legal notice was sent to the opposite party No.1 through counsel on 19.5.2014 calling them to take back the said car and to refund the amount paid by complainant to the opposite party No.1 alongwith all incidental expenses incurred viz, insurance, registration charges etc but inspite of service of notice, opposite party No.1 has failed to take back the car and refund the said amount. On such like averments, the complainant has prayed for directing the opposite parties to refund the price of the car alongwith incidental charges and interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its separate written reply, opposite party No.1 took up preliminary objections regarding maintainability, complainant being not consumer, estoppel, non disclosure of true facts etc. On merits it pleaded that no details of the alleged accident or repair are given and no such report of the dealer is placed on the file who diagnosed it is a case of accident. For the purpose of clarity it may be submitted that the vehicle was purchased by the complainant on 28.2.2014 and he took it to the service station on 2.4.2014 so anything might have happened in between such as accidents etc. Regarding the alleged accident on 10.8.2013, the complainant at the time of delivery has signed the selection memo and sale letter etc. The allegations regarding the cutting in the vehicle identification slip it is also denied. Had there been any accident the complainant would have pointed it out at the time of taking delivery and more so he had not pointed out any cutting in the vehicle identification slip, so all these allegations are after thought. It is also denied that the replying opposite party had sold an old car with accidental repairs. The replying opposite party has sold the car in perfect running condition. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2, inter-alia, pleaded that the answering opposite party being a manufacturer of vehicle in question, has no role to play in the present controversy. The relationship between the opposite parties is on principal to principal basis and opposite party No.2 can not be held liable for any independent act or omission committed by opposite party No.1. It denied other material averments of the complainant.

4. In support of his complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to C13 and closed evidence

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavits Ex.OP1/A, Ex.OP1/B and Ex.OP1/F alongwith copies of documents Ex.OP1/C, Ex.OP1/D and Ex.OP1/E and closed evidence. Further learned counsel for opposite party No.2 has tendered affidavit Ex.OP2/A and closed evidence.

6 We have carefully gone through the record and also heard the learned counsels for the parties.

7. The complainant purchased one Tata Nano car from opposite party No.1 on 28.2.2014 for Rs.2,27,126/- vide retail invoice Ex.C2. The grievance of the complainant is that the opposite party No.1 has sold accidental repaired car instead of new one. Counsel for the complainant contended that on 2.4.2014 the complainant took his car for first free service to Tata Showroom at Raiya but the employees of authorized service centre refused to service the car saying that above said car has already undergone accidental repair and some major parts of the car have been repaired and replaced on 10.8.2013 and they refused to provide free service. On the other hand, learned counsel for the contesting opposite party No.1 contended that there is no evidence on record to prove that the car sold by it was accidental one. He further contended that complainant has not produced on record any documentary evidence in this regard nor has disclosed the name of the authorized service centre of Raiya. He further contended that the onus was on the complainant to prove by leading reliable and expert evidence that the car sold by opposite party No.1 was accidental one. He further contended that the warranty condition clearly provide for replacement of defective part and not the car. In support of his above contention he has relied upon Sushil Automobiles Pvt Ltd Vs. Dr.Birendra Narain Prasad & Ors 2010 CPJ 130 (NC) decided by Hon'ble National Commission, Classic Automobiles Vs. Lila Nan Mishra & Anr 2010 (2) CLT 367 decided by Hon'ble National Commission, Maruti Udyog Ltd Vs. Susheel Kumar Gabgotra and another 2006(2) CLT 150 decided by Hon'ble Supreme Court of India. We have carefully considered the contentions advanced by learned counsel for both the parties. The authorities relied upon by learned counsel for the opposite party No.1 are on different facts and in different context and not attracted in this case. So far as, opposite party No.2 who is manufacturer of the car is concerned, it is not liable for any act or omission done by opposite party No.1 as relationship between the manufacturer and dealer is on principal to principal basis. Now we are to see if the complainant has established that car sold by opposite party No.1 to him was accidental and repaired one. Ex.C4 is copy of vehicle identification and vehicle record issued by opposite party No.1 and from the perusal of the same it is evident that there is over writing in the column of owners name and address. In this case best evidence was the vehicle history which should have been in possession of opposite party No.1. The complainant has moved an application directing the opposite parties alleging that they are maintaining the service record of the vehicle online which reflect the date on which service or repairs are effected and same is in possession of the opposite parties and they should be directed to produce the record of the vehicle in question. It is matter of common knowledge that service history of every vehicle is maintained by the manufacturer and/or dealer. In response to above said application, opposite party No.1 produced service history details Ex.OP1/E which is signed by Assistant General manager(Service) of opposite party No.1 wherein it is mentioned that as desired he has tried to trace out the service history of Tata Nano Chasis No.MAT612254DKB02780 from Siebel (Online workshop application of Tata) on 5.1.2014 but no service history is available. So it means that service history of the car has been deleted. In this document, even the name of the selling dealer and selling date are not mentioned and column meant for the same are lying blank. So inference is that opposite party No.1 has intentionally withheld the service history of the vehicle in question. This fact corroborates the version of the complainant that car sold to him was accidental and repaired one. This fact is further fortified from the over writing in vehicle identification and vehicle record Ex.C4. The complainant served legal notice Ex.C1 upon the opposite party No.1 alleging that the car sold to the complainant was already repaired and some of its parts were replaced on 10.8.2013 as disclosed by Tata Showroom at Raiya. No reply is shown to have been sent by the opposite party No.1 to the above legal notice. In the circumstances of the present case, there is no need to examine any expert witness as it not is a case of any manufacturing defect in the vehicle. Moreover, opposite party No.1 could examine the expert witness to prove that car was not already repaired or accidental before the date of sale. In case after the date of purchase the car of the complainant met with an accident and has been repaired then complainant must have taken the car to authorized service centre of the Tata Company and in that event the service history of the vehicle could have reflected the same. The opposite party No.1 has not produced the service history of the vehicle inspite of direction in this regard. So an adverse influence is liable to be drawn against opposite party No.1 for withholding the material evidence i.e service history of the vehicle which could have proved the version of the complainant that the car had met with an accident on 10.8.2013 and had been repaired before the date of sale to him. From the above mentioned circumstances, irresistible conclusion is that the car sold by opposite party No.1 to the complainant was already accidental and repaired one. It constitute unfair trade practice on the part of the opposite party No.1. The complainant has already used the car for more than a year now and in this view of matter the replacement of the car with new one or refund of the entire price may not be justified and compensation to the complainant is quite reasonable.

7. In view of above circumstances, the present complaint is accepted against opposite party No.1 and it is directed to pay Rs.1 Lac to the complainant as compensation and further Rs.3000/- as litigation expenses within one month from the date of receipt of copy of this order failing which it shall be liable to pay interest @ 9% per annum after expiry of said period of one month till the date of actual payment. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

10.04.2015 Member Member President