MRS. NEENA SANDHU, MEMBER

1.         By this order of ours we dispose off 2 appeals bearing No.455 of 2010 titled as Hind Motors Vs. Gurpreet Singh and appeal No. 458 of 2010 titled as Tata Motors Vs. Gurpreet Singh arising out of the order dated 18.11.2010, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 403 of 2010.

2.         Briefly stated the facts of the case are that the complainant purchased a Tata Indigo CS Dicore (Top Model) manufactured by M/s Tata Motors (OP No.1) through their authorized dealer M/s Hind Motors, Chandigarh (OP No.2) on 29.7.2008. The complainant paid a sum of Rs.10,000/- towards advance booking vide receipt No.3074 dated 3.7.2008 and the balance final payment of Rs.4,73,573/- & Rs.1297/- through receipt No.3830 & 3831 dated 29.7.2008 (total payment of car Rs.4,84,870/-). The complainant took extended warranty of 18 months vide receipt No.4691 dated 27.8.2008 bearing policy No.18-186197 for Rs.3,750/-. It was submitted that from the day one, the complainant is facing problems as the vehicle suffered from lot of manufacturing defects and many times the complainant had to abort the vehicle on highway due to malfunction of the engine and reached destination through hired taxi, which leads to great inconvenience to the complainant and his family members. It was further submitted that when the complainant took the delivery of the car, the vehicle had dents and scratches all over. The Manager of OP No.2 told the complainant to take delivery and these dents and scratches removed by rubbing. The complainant took the delivery of the car with an assurance that all faults should be removed to the satisfaction of the complainant. It was further submitted that the vehicle suffered from lot of manufacturing defects/problems i.e. water entered into the sitting compartment in first week of purchase when it had covered only 430 Kms, car supplied was with dents and scratches, the meter regularly showed check engine warning which used to vanish after restarting the engine which led to lower mileage and pick up, the car had pulling problem to one side and even the alignment and suspension replacement yielded no result, engine noise increased considerably, power steering was hard etc.  The complainant had faced other manufacturing faults other than mentioned above like rear gear light was not working, faulty wiper, AC water leakage in cabin, loose wiring, dashboard noise, door strips loosing locks etc. It was also admitted by the technical team of M/s Tata Motors and M/s Hind Motors on many occasions that the vehicle was having manufacturing defect. The car was within warranty, which caused a lot of mental and physical harassment to the complainant. Hence, the above said act of OPs amount to deficiency in service as well as unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OP No.1 and admitted the facts with regard to purchase of the vehicle by the complainant. It was pleaded that the vehicle was having warranty of 18 months only and denied that the warranty was extended beyond 18 months or that there were scratches, dents over the body of the vehicle or that the same was suffering from any manufacturing defects. It was further pleaded that the job cards/mails did not reflect that there was any problem in the vehicle and whenever the vehicle was brought to the workshop, the same was attended properly to the satisfaction of the complainant.  It was next submitted that the complainant has not produced any expert opinion that the vehicle was suffering from any manufacturing defect.  All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service or unfair trade practice on the part of answering OP and prayed for dismissal of the complaint. 

4.       Reply was filed by OP No.2 and admitted that the vehicle was purchased on 29.7.2008 by the complainant from OP No.2 and the present complaint was filed by the complainant on 1.7.2010 after the completion of about 2 years. After filing the complaint, the complainant visited the workshop of OP No.2 on 27.7.2010 after covering a distance of 44034 Kms and on that date, scheduled service was carried out and no defect or complaint whatsoever was reported by the complainant. It was further submitted that the complainant had not produced any expert opinion to show that the vehicle was having inherent defect or require any extensive repair. The vehicle was purchased on 29.7.2008 and the vehicle was used for the last two years by the complainant. However, it depends upon the complainant that how the vehicle used the complainant and the alleged defects might be occurred because of overloading the vehicle, rough use and also not with the prescribed air in the tyres. The vehicle was not used as per the warranty terms & conditions and irregularity in service by the complainant, which resulted in the said problems in the vehicle. The said defects pointed out were not manufacturing defects rather due to rough use of the vehicle in a negligent manner. The complainant used the vehicle extensively and not maintained it as per the recommendations given under the operator’s service and manual book. The vehicle was sold to the entire satisfaction of the complainant. The complainant had not filed any documentary proof in support of his contention to show that the vehicle has any defect. The relationship between the Ops No.1 and 2 is on principal to principal basis and the answering OP cannot be held liable for any independent act and omission, committed by the other Ops. It was next submitted that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 as the complainant used the vehicle for commercial activity.  It was further submitted that after getting extension warranty, the complainant had not following the service schedule and 4^th service of the vehicle was done by him at 35,700 Kms which was to be done after covering a distance of 30000 Kms to 30500 Kms and even then the complainant did not get the scheduled service of the vehicle at 40000 Kms till date. Hence, the extended warranty of the vehicle got lapsed. Whenever the complainant approached the OP No.2 for any problem of the car, the same was rectified on the very same day with the entire satisfaction of the complainant. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service or unfair trade practice on the part of answering OP and prayed for dismissal of the complaint with heavy costs.

5.       The parties led their evidence in support of their contentions.

6.       The learned District Forum allowed the complaint and directed the OPs to rectify the defects mentioned at Annexure 14, free of cost upto the entire satisfaction of the complainant, being the vehicle under warranty at the time, when the defects arose and supply it to the complainant within 30 days from the date of receipt of copy of this order. The OPs also pay Rs.50,000/- as compensation towards mental agony and physical harassment and Rs.5500/- as costs of litigation. The above said order be complied with by the OPs within 30 days from the date of receipt of copy of this order failing which the OPs would be liable to pay the aforesaid compensation along with penal interest @ 12% p.a. since the filing of present complaint i.e. 2.7.2010 till the order is fully complied with.

          The learned District Forum further directed that if the said defects are beyond repair then the OPs shall refund the cost of the vehicle i.e. Rs 4,84,870/- + Rs 3750/= Rs 4,88,620/- besides payment of compensation of Rs 50,000/- and costs of litigation of Rs 5,500/-.

7.            Aggrieved by the order passed by the learned District Forum, both the OPs filed an appeal bearing No. 455 of 2010 filed by Hind Motors and appeal bearing No.458 of 2010 filed by Tata Motors. Sh.P.K.Kukreja, Advocate for the Tata Motors/OP No.1, Sh.Gurpreet Singh, respondent No.1/complainant in person and Sh.Gagan Aggarwal, Advocate for the Hind Motors/OP No.2.

8.         In appeal filed by Hind Motors/OP No.2 (Dealer) bearing No.455 of 2010, it is contended that the learned District Forum has ignored the relevant fact that the complainant has not filed any documentary proof in support of his contention which could show that the vehicle really has any defect and no expert evidence has been adduced by the complainant to establish any manufacturing defect in the vehicle in question. The vehicle was purchased on 29.7.2008 and the vehicle has covered a distance of 44034 Kms till 24.7.2010. It is further submitted that after getting extension warranty, the complainant has not followed the service schedule and 4^th service of the vehicle was done at 35700 Kms which was to be done after covering a distance of 30000 Kms to 30500 Kms and even then the complainant did not get the scheduled service of the vehicle at 40000 Kms till date. Hence, the extended warranty of the vehicle has got lapsed. Whenever the complainant approached the OP No.2 for any problem of the car, the same was rectified on the very same day with the entire satisfaction of the complainant. The complainant has misled the learned District Forum by saying that he had visited the workshop of OP No.2 more than 40-50 times but the complainant has only visited for 13 times the workshop of OP No.2. At the time of taking the delivery of the vehicle, the complainant has not given any note whatsoever on any document to show that vehicle has some scratches and dents all over the vehicle. The complainant has not adduced any documentary proof to show that he has spent Rs.80,000/- extra due to low mileage and the car is having any pulling problem. It is also false plea of the complainant that the car is having faulty suspension. The complainant has fitted alloy wheels from outside and unauthorized dealer of the Tata Motors due to which the pulling problem on one side and suspension problem might have occurred and the problem of lower mileage also might have been occurred due to this wrong fitting of alloys wheels. The delivery of the vehicle has been taken by the complainant after inspection and to his entire satisfaction. It is further submitted that the relationship of the appellant with the OP No.1 is on principal to principal basis and the appellant/OP No.2 cannot be held liable for the alleged manufacturing defect in the vehicle. The appellant/OP No.2 has also averred before the learned District Forum that the vehicle in question is being used by the complainant for commercial activities, therefore, the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and as such the complainant is not entitled to any relief. The Hon’ble Apex Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute 1995 II CPJ 1 SC in which it has been held that “if any person obtained goods for commercial purpose with a view to use the said goods for carrying on any activity of profit, other than exclusively or self employment, such person is excluded from the Consumer Protection Act, 1986.”  It is submitted that the complaint has been filed by the complainant with ulterior motive and mala fide intension to cause harassment and prejudice to the appellant. The compensation awarded by the learned District Forum is on the higher side and, therefore, the finding of the learned District Forum is totally illegal, patent, manifest and are liable to be set aside and the complaint deserves to be dismissed with costs.

9.         In appeal filed by Tata Motors/OP No.1 (Manufacturer) bearing No.458 of 2010, it is contended that the learned District Forum failed to take notice of the fact that the complainant had merely made a bald and vague averment that the vehicle was suffering from the manufacturing defects. The complainant has approached the learned District Forum for the alleged defect in the vehicle and onus was upon the complainant to prove the manufacturing defects. The complainant alleged       that the vehicle suffered from the problems from the very beginning but the perusal of the records reveals that the complainant has concocted and fabricated averments, made with an attempt to prejudice the mind of the learned District Forum. The perusal of the job cards produced on record reveals that all the observations were noted in the job slip and merely mentioning of the complaints were not sufficient to indicate that the defects stands proved in the vehicle. However, the complainant failed to examine any of the expert witness in order to prove the defects. The learned District Forum has not appreciated the facts while passing the impugned order that the complainant was guilty of concealing the facts of regular extensive utilization of the vehicle in question. The vehicle had covered 39152 Kms till 17.5.2010. Even thereafter the complainant is regularly utilizing the vehicle in question. As per information received from the respondent No.2 till 24.7.2010, the vehicle has covered 44034 Kms. The learned District Forum has wrongly ignored these facts and has wrongly concluded that the vehicle was suffering from the defects as mentioned in Annexure 14 and the said defects were liable to be repaired. The said pre-job card ‘Annexure 14’ was nothing but a document for booking of the vehicle to be brought on 27.8.2008 for service but the complainant has concealed the fate of job card from the learned District Forum. In the absence of report of any expert, a conclusion cannot be drawn that there is a manufacturing defect. The impugned order passed by the learned District Forum is beyond the limited warranty terms extended by the appellant. The limited warranty terms were not appreciated by the learned District Forum while passing the impugned order. Obligation of the appellant was only limited to the extent of repairing the vehicle for the parts found defective due to poor workmanship etc. In the instant case, the vehicle had admittedly covered more than 44000 Kms in short period of more than two years. Any payment of compensation was excluded from the terms of the warranty clause. However, the learned District Forum grossly erred in appreciating all these facts while passing the impugned order. It is submitted that the warranty offered on every vehicle manufactured and sold is subject to such terms and conditions as contained in the warranty. Any violation of the warranty terms by the customer results in the forfeiture of the warranty. However, the complainant has made false averments and the learned District Forum has not taken any note and the complainant cannot be permitted to take advantage of his own wrongs who has not maintained the vehicle as per warranty terms. The respondent No.1 had filed replication to the complaint along with three Annexures 20 to 22. The perusal of Annexure 20 reveals that none of the problems as per the Annexure 14 were in existence. The perusal of Annexure 20 further reveals that the vehicle had covered 43571 Kms and was not suffering from any of the problems, even the complaints in ‘Annexure 14’ were not pointed out by the complainant. Thus under these circumstances, it was safe for the learned District Forum to conclude that the vehicle was not suffering from any of the manufacturing defects. The learned District Forum has not appreciated the facts that the appellant had extended limited warranty terms and under the limited warranty terms, the complainant was under obligation to bring the vehicle to the workshop for the maintenance and for such obligation, the complainant was not entitled for the payment of compensation. Admittedly, the vehicle was not suffering from any of the manufacturing defects but the learned District Forum has wrongly concluded that the vehicle is to be repaired to the entire satisfaction of the complainant as all these defects arose during the warranty period. The learned District Forum further grossly erred in concluding that the complainant was entitled for compensation of Rs.50,000/- costs of Rs.5500/- and penal interest @ 12% p.a. from the date of filing the complaint till date of compliance of the order. The impugned order has no foundation and is not maintainable in the eyes of law. It is submitted that the learned District Forum was not sure that whether the vehicle was suffering from the defects, whether the defects were repairable or not. The learned District Forum grossly erred in concluded that if the repair was not possible then the complainant was entitled for the refund of cost of the vehicle i.e. Rs.4,84,870/- plus Rs.3750/-, compensation of Rs.50,000/- and Rs.5500/- towards the litigation costs. The said part of the order passed by the learned District Forum is not maintainable. As such, the vehicle is not suffering from any manufacturing defects and needs no repairs. It is further submitted that onus to prove that there are any defects in the above said vehicle is on the complainant who has failed to discharge the said onus. In the instant case, the complainant has not produced the evidence of the expert witness to prove the defects and mere bald statement of the complainant was not sufficient to prove that the vehicle was suffering from any of the alleged manufacturing defects. The learned District Forum has grossly erred in jumping to the conclusion on the basis of presumptions that the complainant has sufficiently proved his case by way of documentary evidence that the vehicle supplied to him remained defective throughout. There is no cogent or valid evidence on record which shows that the vehicle in question was defective. The learned counsel for the appellant has filed the following citations :-

i)            Sundeep Polymers Pvt. Ltd & Anr. Vs. Mercedes Benz India Limited III(2009) CPJ 389 (NC).

ii)            Classic Automobiles Vs. Lila Nand Mishra & Anr. I(2010) CPJ 235 (NC).

iii)            Chandeshwar Kumar Vs. Tata Engineering Loco Motive Co. Ltd. & Anr.  I (2007) CPJ 2(NC).

Iv)        Ajitha Chit Funds (P) Ltd. Vs. Tata Engineering and Locomotive Co. Ltd.& Ors. I(2007) CPJ 204 (NC).

v)            Dagadu Bhairu Bhosale Vs. Scooter India Limited & Anr. II (2006) CPJ 143 (NC).

vi)            Sushila Automobiles Pvt. Ltd. Vs. Dr.Birendra Narain Prasad & Ors. III(2010) CPJ 130 (NC).

vii)            Scooter India Limited Vs. Majulaben Kiritbhai & Ors. III(2010) CPJ 235 (NC).

It is further submitted that the complainant whenever brought the vehicle at the service stations of the appellant/OP No.1 for servicing and/or for rectification of defects, the same were duly attended to as per the warranty policy of the appellant/OP No.1. Therefore, the impugned order passed by the learned District Forum is illegal, arbitrary and void in law. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum  may kindly be set aside.

10.       We have heard the complainant in person, learned counsel for the Ops and perused the record.

11.       It is an admitted fact that the complainant purchased a Tata Indico CS Dicor Vehicle from OP No.2 i.e. Hind Motors on 29.7.2008 for Rs.4,84,870/-. It was contended by the complainant that this vehicle had a manufacturing defect from the very beginning due to which the complainant had to abort the vehicle on highway due to mal-functioning of the engine and the meter regularly showed check engine warning which used to vanish after restarting the engine, which led to lower mileage pick up, the car had pulling problem to one side and even the alignment and suspension replacement yielded no result, engine noise increased considerably, power steering was hard etc. Not only this, water entered the sitting apartment when it had done only 430 Kms, due to which the interior of the car was spoiled. It was further contended that apart from the abovementioned defects, the said vehicle has also suffered from various other defects. It is pertinent to mention here that for the removal of the abovementioned defects in the car, the OP No.1 i.e. Tata Motors has changed some of the defective parts and not all which were required to rectify the problem, inspite of the fact that the said vehicle was within warranty period. The reason best known to OPs that why all the defective parts were not changed in order to make the said vehicle perfectly alright and till today, the defects in the said vehicle are still there. Due to the non-removal of the defects from the above said vehicle, the complainant has to go again and again to the service station of OP No.2, which has been proved beyond any doubt from the documents annexed along with the complaint. It was next contended that due to this aforesaid act of the OPs, the complainant had to suffer a lot mentally as well as physically. Hence, there is deficiency in service on the part of OPs and the learned District Forum has rightly adjudicated the matter and prayed that the appeal filed by the OP No.1 i.e. (Tata Motors) and OP No.2 (Hind Motors) may kindly be dismissed along with costs. 

12.       The learned counsel for OP No.1 i.e. Tata Motors (Manufacturer) admitted the fact that the complainant had purchased the above said vehicle on 29.7.2008. It was vehemently denied that there is no manufacturing defect as alleged by the complainant because till 24.7.2010, the said vehicle has covered 44034 Kms. Had there been any manufacturing defect then it could not have been possible for a vehicle to cover a mileage of 44034 Kms and the complainant always went to OP No.2 for the scheduled services only and there is no evidence of any expert to show that the defects if any, in the vehicle as alleged by the complainant are manufacturing defects. It was further contended that the above said vehicle is not within the warranty period as it has covered more than 44000 Kms in a short period of more than two years. As regards to the allegations made by the complainant regarding the extended warranty, it was contended that the standard warranty for this vehicle is for 18 months and the Tata Motors has never given any standard warranty to the complainant. The complainant has also not placed any document on record to show that the Tata Motors has ever given any extended warranty to the complainant. The defects mentioned in all the job cards were due to the daily wear and tear of the vehicle and not are manufacturing defects as alleged by the complainant. However, all these defects were removed by the OPs, free of cost during the warranty period. Hence, there is no deficiency in service on the part of OP No.1 i.e. Tata Motors and the appeal may kindly be allowed in favour of the Tata Motors (appellant).

13.       The learned counsel for OP No.2 i.e. Hind Motors (Dealer) admitted the factual matrix of the case and admitted that the extended warranty was given to the complainant. It is the complainant, who had not followed the service schedule and the complainant had misled the learned District Forum by saying that he had visited the workshop of OP No.2 more than 40-50 times, whereas the complainant has only visited the workshop of the OP No.2 for 13-14 times only. It is pertinent to mention here that at the time of taking the delivery of the vehicle, the complainant has not given any note whatsoever on the document to show that the vehicle has some scratches all over the vehicle and the complainant has failed to adduce any documentary proof regarding the allegation of spending Rs.80,000/- extra due to the low mileage and the car is having any pulling problem and the car is having faulty suspension. It was further contended that the OP No.2 is not the manufacturer of the vehicle and the relationship between OP No.1 (Tata Motors) and OP No.2 (Hind Motors) is on principal to principal basis and the OP No.2 cannot be held liable for the alleged manufacturing defect in the vehicle.  Since the above said vehicle was purchased by the complainant for commercial purpose, therefore, the complainant is not a consumer under the Consumer Protection Act, 1986. Hence, the order passed by the learned District Forum may kindly be set aside and the complaint may kindly be dismissed with costs in the interest of justice.

14.       We have heard the learned counsel for the manufacturer (Tata Motors) i.e. OP No.1 as well as dealer (Hind Motors) i.e. OP No.2 and the complainant in person and also perused the record. In the absence of any conclusive proof regarding the use of the vehicle for commercial purposes, this contention of the OP No.2 is baseless and the complainant is consumer within the purview of the Consumer Protection Act, 1986. The allegation made by OP No.1 that the above said vehicle was not within the warranty is also not acceptable because it has been admitted by the OP No.2 that it is the OP No.2 who has extended the warranty. From the facts of the case, it is evident that the complainant had to rush time and again to the service station of OP No.2 for the removal of the defects but admittedly, the OP No.2 has failed to rectify the defects from the above said vehicle.  It is pertinent to mention here that due to the unsatisfactory service done by OP No.2, the complainant lodged a complaint with Tata Motors and in pursuance of this complaint, the Head Office of the manufacturer directed their dealer i.e. OP No.2 to provide all the necessary support to ensure that the car of the complainant be rectified comprehensively and gave the complainant hastle free services but inspite of that, the OP No.2 has failed to rectify the defects in the above said vehicle. It is also an admitted fact that due to the non-fixation of the rubber properly at the time of manufacturing, the water entered into the sitting compartment of the car immediately after the purchase when it has only covered 430 Kms, which ruined the inner compartment of the above said vehicle. Regarding this fact, the Job Slip of Hind Motors (OP No.2) (Annexure-3) is placed on record which shows that the water entered into the car and the reason given for the entering of the water is “Water Leakage in Cabin Area is due to Rubber not fixed proper at the time of manufacturing”.  From this document, it is clear that due to the non fixation of the rubber properly, the water entered into the car and spoiled the whole interior of the car. Hence, it has been fully established that due to this negligence act of OP No.1 by not fixing the rubber properly in the car at the time of manufacturing, the interior of the above said vehicle was spoiled due to which, the complainant has to suffer a lot mentally and physically. Although in the present case, there is no report of any expert regarding the manufacturing defect but at the same time it cannot be denied that the complainant had took his vehicle so many times to the OP No.2 for the removal of the defects and the OP No.2 has failed to rectify the same. Hence, there is deficiency in service on the part of the OP No.2. In our opinion, the learned District Forum has rightly observed that there is deficiency in service on the part of both the OPs and is justified by directing both the OPs to removal the defects free of cost to the entire satisfaction of the complainant and to pay a sum of Rs.50,000/- towards the mental agony and harassment. As regards to the direction given in para No. 19 of the impugned order passed by the learned District Forum that if the said defects were beyond repair then the OPs shall refund the cost of the vehicle i.e. Rs.4,84,870/- is not required because in the absence of any cogent evidence, it cannot be concluded that there is any manufacturing defect in the above said vehicle and in the absence of any manufacturing defect, a direction for refund of the whole price of the vehicle to the tune of Rs.4,84,870/- could not be given particularly, when the vehicle has run for more than two years and covered 44034 Kms and the complainant is not entitled for Rs.3750/- the cost paid by the complainant for extended warranty because the OPs will replace all the defective parts free of cost. At the same time seeing the past conduct of the OPs in not rectifying the defects of the vehicle even after the repeated visits of the complainant, we feel that if the OPs are unable to rectify the defects from the above said vehicle, as per the directions given to them by the learned District Forum in para No. 18 to the entire satisfaction of the complainant then in that case, the OPs should pay a sum of Rs.30,000/- to the complainant jointly and severally, so that the complainant can get the defects rectified from some other workshop in order to avoid further inconvenience and harassment to him. The order passed by the learned District Forum in para No.19 to the extent of refund of the cost of the vehicle i.e. for Rs.4,84,870/- is liable to be set aside. 

15.       With the foregoing discussion, the appeal filed by OP No.1 i.e. Tata Motors and the other appeal filed by OP No.2 i.e. Hind Motors are disposed of in the above said manner and directed the OPs jointly and severally to pay the following amount

i)          The OPs are directed to rectify the defects free of cost upto the entire satisfaction of the complainant.

ii)            Compensation of Rs.50,000/- towards mental agony and physical harassment.

iii)            Rs.10,000/- as costs of litigation.

iv)            Rs.30,000/- in case the defects in the vehicle were not rectified to the entire satisfaction of the complainant within 20 days from the date of the delivery of the car by the complainant to the OP No.2 i.e. Hind Motors.    

            The above said order be complied with by the OPs jointly and severally within 30 days from the date of receipt of copy of this order, failing which interest @ 12% shall be paid thereon with effect from the date of the impugned order till the amount is actually paid to the complainant.

16.            Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

11^th March, 2011.