KERALA STATE CONSUMER DISPUTES REDRESSAL  

     COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL  NO:289/2004

                                     JUDGMENT DATED 11.01.2010

 PRESENT

SRI.M.V.VISWANATHAN                        :  JUDICIAL MEMBER

M/s Tata Motors Ltd. (Formerly Tata

Engineering & Locomotive Co. Ltd.),

Passenger Car Division,                           : APPELLANT

26^th Floor, World Trade Centre,

Cuffe Parade, Mumbai 100 005.

(By Adv: M/s Menon & Menon)

          Vs.

Dr.p.C.Sunil,

Associate Professor,                                : RESPONDENT

3/207, Anurag, Chembumukku,

Kochi – 682 030.

(By Adv: Sri.Anoop Joseph)

                                      JUDGMENT

SRI.M.V.VISWANATHAN:  JUDICIAL MEMBER

The above appeal is directed against the order dated:5^th April 2004 of the CDRF, Ernakulam in EP:90/02 in OP:1000/01.  The appellant herein is the 1^st Judgment Debtor and the respondent is the Decree Holder.  The aforesaid EP:90/02 was filed on the strength of the order dated:14..6..2002 passed by CDRF, Ernakulam in OP:1000/01.  The aforesaid order in OP:1000/01 was passed as a compromise decree and thereby the appellant/1^st Judgment Debtor (manufacturer) was directed to carry out the defects in the disputed vehicle.  It was specifically stated that the defects noted by the expert commissioner have to be rectified.  On the strength of the said order in OP:1000/01 the vehicle was entrusted with the service centre of the Appellant/Judgment Debtor.  The vehicle was entrusted on 5..7..2002 and after rectification of the defects the said vehicle was handed over to the respondent/Decree Holder on 19..7..2002.  It is the case of the Decree Holder that even after the rectification of the defects 3 defects were still existing and so the Decree Holder filed the aforesaid EP:90/02.  The said EP was filed on 29..07..2002.  At the instance of the appellant/Judgment Debtor the vehicle was inspected by the very same expert commissioner and he submitted the 2^nd inspection report dated:3..12..2003.  In the aforesaid inspection report it has been categorically reported that it is found difficult to roll the vehicle on the gradient-a little reduction in pick up is noticed.  It is also reported that this defect, regarding the stopping of the vehicle in a gradient and finding it difficult to move the vehicle, has not been attended, though it is pointed out in the repair order form.  The expert commissioner has also reported that there is engine oil leak between the cylinder block and cylinder head.  It is also reported that this defect is not rectified after the repair.  The expert commissioner further reported that AC blower showing no increment in the 2^nd speed and that this defect is also not rectified.  It is specifically stated that all other defects except the aforesaid 3 defects have been rectified and general conditions of the car are satisfactory.  It is based on the inspection report dated:3..12..2003 the Forum below passed the impugned order dated:5..4..2004.

2. The learned counsel for the appellant/Judgment Debtor vehemently argued for the position that the defect regarding AC blower was not reported in the earlier inspection report dated:14..5..2002.  On a perusal of the aforesaid inspection report dated:14..5..2002 would make it abundantly clear that the above 3 defects were also noticed by the expert at the time of his first inspection on 10..5..2002.  So, the case of the appellant that no such defects were noticed by the expert commissioner in his first inspection report cannot be believed for a moment.  On the other hand, a thorough perusal of the inspection report dated:14..5..2002 would make it crystal clear that the aforesaid 3 defects were noticed by the expert commissioner.

3. The learned counsel for the appellant/Judgment Debtor has also relied on the testimony of the expert who was examined in EP.No:90/02.  The oral testimony of the expert commissioner would support the case of the respondent/Decree Holder that all the 3 defects were noticed by the commissioner in his 1^st report and the same defects were found in his 2^nd inspection.  The case of the appellant/Judgment Debtor that the oil leak which was existing at the time of the first inspection was rectified and the present engine oil leak is a subsequent development.  The aforesaid submission made by the learned counsel for the appellant cannot be accepted as such.  It is pertinent to note that the vehicle was handed over to the Decree Holder on 19..7..2002.  It was handed over after rectifying the defects.  But there is nothing on record to show that on 19..7..2002 there were no defects for the vehicle or that all the above 3 defects were also rectified when the vehicle was handed over to the complainant/Decree Holder on 19..7..2002.  It is to be noted that the Judgment Debtor could not produce any endorsement obtained from the Decree Holder to the effect that he received the vehicle with his full satisfaction.  More over, EP:90/02 was filed on 29..7..2002.  It can be seen that the said EP was filed just after 8 days of handing over of the vehicle.  Had there been no such defects in the vehicle, in the ordinary course, the Decree Holder should not have filed such a petition for execution of the order passed in OP:1000/01.  It is also to be noticed that the Judgment Debtor did not take any immediate steps to get the vehicle inspected by the very same expert commissioner.  There occurred a delay of more than one year to get the vehicle inspected by the very same expert commissioner.  The mere fact that by the lapse of more than one year the vehicle had covered a distance of 17000 Kms cannot be taken as a ground to hold that this oil leak was developed subsequent to the rectification of the defects.  It is to be noted that the Decree Holder who purchased the vehicle is expected to use the vehicle for his convenience and enjoyment.  He cannot be prevented from using the vehicle because of the fact that he filed EP:90/02.  It was the bounden duty of the Judgment Debtor to substantiate his case that all the defects pointed out in the earlier report were rectified and the vehicle was handed over to the Decree Holder on 19..7..2002 without any such defects.  But the Judgment Debtor miserably failed in establishing that fact.  On the other hand, the available circumstances would only show that the Judgment Debtor failed to rectify the aforesaid 3 defects which are noticed by the expert commissioner in his 2^nd inspection report dated:3..12..2003.  So, it can very safely be concluded that the Judgment Debtor failed to rectify the defect regarding engine oil leakage.  Thus, the execution court is perfectly justified in passing the impugned order dated:5..4..2004 in EP:90/02.  The appellant/Judgment Debtor is bound to rectify all the above 3 defects pointed out by the expert commissioner in his expert report dated:3..12..2003.

In the result the present appeal is dismissed.  The impugned order passed by the Forum below in EP:90/02 is confirmed.  The appellant is liable to pay cost of the respondent/Decree Holder in this appeal.  This Commission is pleased to fix the cost of the respondent at Rs.500/-.

M.V.VISWANATHAN:  JUDICIAL MEMBER

VL.