Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 31.05.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to repair or replace the engine of the car bearing no. BR 1AK 2458.

2. The facts of this case lies in a narrow compass which is as follows:-

Complainant has asserted that he has purchased Palio Stile SDE Model Car from opposite party no. 2 in the month of May 2008 after paying consideration money of Rs. 4, 68, 607/- vide annexure – 1. The said car was delivered to the complainant on 24.05.2008 as will appear from annexure – 1/A with delivery note. The complainant has also paid extra amount of Rs. 4, 200/- for the extended warranty period of 18 months so as to cover three years warranty period with object of comprehensive maintenance. The complainant has further paid amount of Rs. 16,325/- towards insurance and Rs. 15,200/- towards registration cost as will appear from annexure – 1/B.

It is the case of the complainant that the servicing of the car was done within schedule time yet in a very short span of time the aforesaid car began to give trouble and there has been constant emission of smoke from the engine.

On 15.09.2010 the engine of the car was checked at the workshop of Tata motors and the workshop manager asked the complainant to payment of Rs. 6,548/- from the necessary work done which the complainant paid as will appears from annexure – 1/C.

The complainant has further asserted that despite the aforesaid work done the car could not run into perfect condition and complainant has to consult other workshop of Guinea Tata motors on 23.09.2010. There the engine of the car was thoroughly checkup and for repairing purpose the complainant hand over the car at the said workshop and the paper related to warranty period which also given to Mr. Vivek Kumar employee of the aforesaid workshop on 25.09.2010. The complainant contacted opposite party no. 4 who asked him to give some advance payment approximately Rs. 25,000/- for the purpose of doing the needful.

The complainant paid Rs. 25,000/- through cheque bearing no. 623414 by depositing in the account of workshop at SBI being account no. 31186801335. He approached the aforesaid workshop of opposite party no. 4 several times and lastly he was informed that there was very little chance of removing the defect. Opposite party no. 4 has also behaved rudely with the complainant and blamed him for choosing a wrong car.

Complainant thereafter approached opposite party no. 2 and opposite party no. 3 but without any help.

On behalf of opposite party no. 1 a written statement has been filed stating therein that the relation between the answering opposite party no. 1 and opposite party no. 2 is principle to principle basis and opposite party no. 2 is not an agent of opposite party no. 1. Hence opposite party no. 1 is not liable for act of opposite party no. 2.

It has been further stated that relation between the customer/ complainant and opposite party no. 1 is limited to the terms and conditions of warranty.

It has been further stated in Para – 8 of written statement that the complainant has filed this complaint with malafide intention despite having been repaired by the opposite parties. The vehicle of the complainant was duly attended whenever it was brought to the service centre it was attended.

Opposite party no. 1 has denied every allegation. In Para – 18 of the written statement the opposite party no. 1 has stated that “ with reference to Paragraph no. 9, 10 and 11 opposite party no. 1 states that the complainant has brought the subject vehicle to the workshop of the Guinea Tata Motors situated at Manglam Vihar with alleged complaint of cold starting problem and poor pickup. After inspection of car, complainant was informed that repair cost will come around Rs. 50,000/-. Accordingly, complainant has deposited Rs. 25,000/- in advance as part payment. It is further submitted that total cost of repair work come Rs. 50,929/-. It is further submitted that after completion of repair work, complainant has taken test drive of vehicle but refused to pay remaining money i.e. Rs. 25,929/- and he had refused to take delivery of the vehicle. it is further submitted that the complainant made this complaint to avoid his liability to pay balance amount for repair work.”

On behalf of opposite party no. 2 a show cause has also been filed stating therein that opposite party no. 2 has given due service whenever the vehicle was brought to the service centre. It has been stated that opposite party no. 2 has tried the best for handing over the vehicle to the complainant and as written letter to this complainant on 05.03.2011.

It has been further stated by opposite party no. 2 that the complainant must pay the balance amount of Rs. 25,929/- then the car will be handed over to the complainant.

The complainant has also filed rejoinder stating therein the complainant has taken utmost care but trouble from the car’s engine erupted during the warranty period hence the entire rectification of the defected goods or parts lies with the opposite parties.

It has been also stated that opposite parties had also taken Rs. 50,929/- from him during warranty period.

It further appears that opposite party no. 3 and 4 did not appeared despite service of notice and hence the valid tamila was declared and case was heard exparte against them.

The facts asserted by respective parties have been narrated in the foregoing paragraphs.

It is an admitted case that opposite party no. 2 is a dealer who sales the car of opposite party no. 1 and the complainant has purchased the aforesaid car vide annexure – 1 from opposite party no. 2. It has also asserted by the complainant that after few months of purchasing the car, the engine of car was emitting smoke and thereafter the engine was checked by concerned workshop and the complainant had made payment of Rs. 6,548/ for necessary repair ( annexure – 1/C) but despite the fact the defect continues. It is also not denied that the aforesaid defect arose during warranty period.

It is also admitted that the car of the complainant lies with opposite party no. 2 as will appear from Para – 13 and 14 of the show cause of opposite party no. 2 and in Para - 16 it has been asserted by opposite party no. 2 that if Rs. 25,929/- is given to opposite party no. 2 then the car in question will be given back to complainant. Thus it is crystal clear that the car is lying with opposite party no. 2 since 2010 it is 2016.

Thus the car is lying with opposite party no. 2 from about 6 years for repairing the engine defect during the warranty period for which the complainant has already paid earlier.

It goes without saying that when a simple citizen faces the mighty organization such as opposite party no. 1 and 2 then he becomes helpless and he had no option but to approach the court of law or Forum for redressal of his grievance. No person will leave a car in workshop after purchasing some time ago after payment of full amount unless the car is totally defective. Apart from this fact this action of the complainant shows his anguish etc.

The contention of opposite party no. 1 that opposite party no. 2 is not his agent rather principle is not tenable in the facts and circumstances of this case. It is true that in this case there is no expert report but the very fact that since the purchase of the car on 24.05.2008 and the car was repaired several times in workshop for engine defect and at last in 2010 the complainant handover the car to workshop of opposite party no. 2 clearly point out towards manufacturing defect.

It is also surprising that during warranty period the complainant has to pay substantial money in workshop for repairing the defect of engine but the defect could not be removed.

Thus the aforesaid conduct of opposite parties clearly point out the deficiency on their part.

In view of the aforesaid facts and circumstances we direct the opposite party no. 1 and 2 to replace the engine of the aforesaid car with new and up to date engine with a 3 months.

It is made clearly that if the company fails to replace the engine of the car with new one then the opposite party no. 2 is directed to return the price of the car i.e. Rs. 4,68,607/- ( vide annexure – 1 ) within the period of three months from the date of receipt of this order or certified copy of this order failing which the opposite party no. 2 will have to pay an interest @ 12% on the aforesaid amount till its final payment.

It is open for opposite party no. 2 to realize the aforesaid amount from opposite party no. 1 in due proportion.

Opposite party no. 1 and 2 are further directed to pay Rs. 25,000/- to the complainant within the period of three months.

It is needless to say that the car in question is in the custody of opposite party no. 2. Hence if the price of car is returned to the complainant, then the aforesaid car will become property of opposite party no. 2 in accordance with law.

Accordingly this case stands allowed to the extent referred above.

                             Member                                                                              President