Kerala

StateCommission

A/14/139

TATA MOTORS PVT LTD - Complainant(s)

Versus

HAREENDRAN - Opp.Party(s)

V. KRISHNA MENON

28 May 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

COMMON JUDGMENT

APPEAL NOS.139/14, 425/14 & 164/14

DATED 28/05/2015

(Appeal filed against the order in CC No.161/2011 on the file of CDRF, Kannur dated 13/12/2013)

 

 

PRESENT:

 

SMT. A. RADHA                            :         MEMBER

SHRI. K. CHANDRADAS NADAR :        JUDICIAL MEMBER

SMT. SANTHAMMA THOMAS    :        MEMBER

 

APPEAL NO.139/2014

 

APPELLANT:

 

Tata Motors Ltd., Regional Office,

LBS Marg, Wagle Estate,

Thane-400 604,

State of Maharashtra.

 

                   Vs

 

RESPONDENTS:

 

1. Hareendran, S/o. Kannan Mabair,

Residing at 10183, Rajani Nivas,

P.O. Uruvachal, Mattannur, Kerala State.

 

2. Tata Motors Finance Ltd.,

Tata Motors Building, 2^nd Floor,

Operations Department, Teen Hath Naka,

Gyan Sadhana College Service Road,

Thane-400 604.

 

3. Tata Motors Finance Ltd.,

Kannur Branch, Ward No.789, Wib 15,

1^st Floor, South Bazar, Kannur, Kerala State.

 

4. Sakthi Automobiles, Thana P.O., Kannur,

Kannur District, Kerala State.

 

(By R4 Adv:  R. Suja Madhav)                    

 

APPEAL NO.425/2014

 

APPELLANTS:

 

1. Tata Motors Finance Ltd.,

Tata Motors Building, 2^nd Floor,

Operations Department,

teen Hath Naka,

Gyan Sadhana College Service Road,

Thane-400 604.

 

2. Tata Motors Finance Ltd., Kannur Branch,

Ward No.789, Wib 15, 1^st Floor,

South Bazar,

Kannur, Kerala State.

 

(By Adv: P. Fazil & Others)                   

 

Vs

 

RESPONDENTS:

 

1.  Hareendran, S/o. Kannan Mabair,

Residing at 10183, Rajani Nivas,

P.O. Uruvachal, Mattannur, Kerala State.

 

2. Tata Motors Ltd., Regional Office,

LBS Marg, Wagle Estate, Thane-400 604,

State of Maharashtra.

 

3. Sakthi Automobiles, Thana P.O.,

Kannur, Kannur District, Kerala State.

 

(By R4 Adv:  R. Suja Madhav)  

              APPEAL NO.164/2014

 

APPELLANT:

 

          Sakthi Automobiles, Thana P.O.,

Kannur, Kerala.

 

(By R4 Adv:  R. Suja Madhav)      

 

RESPONDENTS:

 

1. Hareendran, 10183, Rajan Nivas, P.O.,

Uruvachal, Mattannur, Kannur, Kerala.

 

2. Tata Motors Ltd., Regional Office,

LBS Marg, Wagle Estate,

Thane-400 604,

State of Maharashtra.

 

(By R2 Advs:  V. Krishna Menon & Others) 

3. Tata Motors Finance Ltd.,

Tata Motors Building, 2^nd Floor,

Operations Department, Teen Hath Naka,

Gyan Sadhana College Service Road,

Thane-400 604.

 

4. Tata Motors Finance Ltd., Kannur Branch,

Ward No.789, Wib 15, 1^st Floor,

South Bazar, Kannur.

 

 

                    COMMON JUDGMENT

DATED 28/05/2015

 

SMT. A. RADHA  :  MEMBER

 

          Aggrieved by the order passed in C.C No.161/11 on the file of CDRF, Kannur, appeal preferred by 1^st opposite party in appeal No.139/14, 2^nd and 3^rd opposite parties in appeal No.425/14 and appeal No.164/14 by 4^th opposite party.

          2.  The complainant purchased Tata Tipper from 4^th opposite party on 23/01/2007 for an amount of Rs.7,13,000/- for earning his  livelihood.  The complainant availed a loan for Rs.6 Lakhs from       3^rd opposite party, the branch office of the 2^nd opposite party.  The insurer and manufacturer are the branches of the same company and sister concern.  It is the allegation of the complainant that the vehicle showed serious troubles and manufacturing defects on the same month of purchase.  The vehicle suddenly stopped while running on the way and this defect repeated 4 times within the 1^st service.  Though assurance of service was made by the 4^th opposite party the running condition was very poor and the complainant who is a driver himself could not operate the vehicle and caused heavy loss.            In between 23/01/2007 and 12/08 the vehicle stopped its functioning on 100 occasions.  The complainant sustained a loss of Rs.1,50,000/- as recurring repair charges and loss of earnings.  The service centre of the 4^th opposite party expressed their helplessness to repair the vehicle properly.  The opposite parties 2 & 3 demanded to remit the loan installment dues and also threatened to seize the vehicle from the complainant’s possession.  It is alleged in the complaint that the opposite parties forcefully repossessed the vehicle from the possession of the complainant.  It is stated in the complaint that the opposite parties promised to return the value of the vehicle to the complainant soon after the sale to a 3^rd party.  Meanwhile, in March 2011 complainant received a claim petition which was filed by the   2^nd and 3^rd opposite parties before the arbitrator in connection with the loan arrears of the vehicle.  It was mentioned in the claim petition that the vehicle was sold for Rs.1,55,000/- and the complainant is liable to pay the arrears of loan instalments to the 2^nd and 3^rd opposite parties.  It is alleged in the complaint that the sale amount received by the opposite party is totally false as the opposite party themselves claimed that the vehicle was new and defect-free.  The vehicle was having manufacturing defect and the opposite party cheated the complainant and the complainant sustained a total loss of Rs.7,13,000/- which includes Rs.1,13,000/- Rs.4,50,000/- and Rs.1,50,000/- towards recurring expenses incurred.  He also claimed compensation of Rs.1 Lakh towards mental agony and cost of proceedings.

3.  The 1^st opposite party/manufacturer contended that the complainant had not produced any expert evidence that there is any manufacturing defect.  The specific contention of the 1^st opposite party is that there is no manufacturing defect as alleged in the complaint.  The complainant does not fall within the definition of ‘consumer’.  The complainant failed to follow the guidelines given in the operator’s service book which resulted in the improper performance of the vehicle.  As per clause VII of the warranty it does not cover normal wear and tear of the vehicle or the parts or any damage due to negligent or improper operation or storage.  The complainant purchased the vehicle on 23/01/2007 and till 26/11/2008 the vehicle covered around 36118 kms.  It proves that the vehicle was in absolute road worthy condition.  It is also contended that the jobs or repairs were minor and running repairs and repairs to be carried out were due to the continuous, extensive and improper usage of the vehicle and the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which could be rectified or defective part can be replaced under warranty.  The complainant’s prayer for full payment of the vehicle is contrary to law and is unsustainable.  The complaint is filed with an ulterior motive and malafide intention to cause harassment by alleging manufacturing defect.  There is no deficiency in service on the part of 1^st opposite party and nothing is produced by the complainant to prove the manufacturing defect of the vehicle.  The complainant had not reported any complaint after the service.  The false allegation of manufacturing defect is in order to counter blast the claim of the financier on default of the payments and the complaint has no merit. 

4.  As per the version filed by 2^nd and 3^rd opposite parties the complaint is filed as an abuse of process of law suppressing the material facts.  The complainant raised baseless allegation of deficiency in service without any evidence.  The complainant had not produced any evidence to show that the vehicle was purchased for earning his livelihood.  The vehicle was purchased for commercial purpose and under Consumer Protection Act the complainant does not come under the definition of ‘consumer’ as the vehicle was using for commercial purpose.  The other contentions raised by the 2^nd and 3^rd opposite parties are that the complainant defaulted repayments within the prescribed time and delayed the payments of instalments.  Further on delayed payments also accrued overdue charges along with remaining balance towards the instalments.  The loan was availed under the terms and conditions of the Hire Purchase Agreement and on default of payments on the part of complainant the complaint is filed as a counter blast by the term deficiency in service against the opposite party.  It is also contended that the cheques issued by the complainant towards the repayment of loan have been regularly dishonored due to in-sufficient funds maintained in the bank account of the complainant which itself proves that the complainant possesses malafide conduct.  The terms and conditions of agreement specified the insalments, interest overdue charges, repossession terms and sale options etc.  After signing a contract the complainant is estopped to challenge the contractual terms regarding the loan.  The opposite parties re-possessed the vehicle as per the terms and no force was committed from the part of opposite parties.  The complainant also failed to adduce any evidence to prove allegation of forceful repossession.  The complainant is estopped from raising allegations after re-possession and disposal of the vehicle by raising as a ground for complainant to contend that he was prejudiced.  No unfair trade practice attached by the opposite party nor any deficiency of service.  The arbitral proceedings followed in accordance with the clause 23 of the loan agreement.  The complainant had not cleared the outstanding amount and as the value of the vehicle was                   depreciating the opposite parties have no other choice except to sell the vehicle to retrieve the due amount from the sale proceeds.       The complainant had to repay an outstanding amount of Rs.4,52,050.68 and as per the arbitration proceedings the balance amount was due to be paid to the opposite parties.  There is no cause of action to file this complaint by the complainant.

5.  The 4^th opposite party contented in their version that the complainant purchased the vehicle for commercial purpose and does not come within the purview of complainant as defined in the Consumer Protection Act.  The vehicle purchased in January 2007 and the complaint is filed in 2011 as such the complaint is barred by limitation.  It is also contended that the complaint is filed in March 2011 on receipt of a notice from the financier since a huge amount has been defaulted by the complainant. At no point of time the complainant alleged manufacturing defect with the opposite party.  This complaint is filed as an after-thought in order to wriggle out his legal liability to pay the financier.  The complainant is mis-using the power of the Consumer Form alleging manufacturing defect.  The opposite party was approached for periodical service of the vehicle by the complainant.  Out of the 11 visits, 7 visits were for periodical services under the warranty and 4 were for minor complaints and the period was from 30/01/07 to 05/11/08.  No major compliant reported during that period.  All the repairs of the vehicle had been carried out free of cost under the warranty issued by the manufacturer.  In the complaint it is alleged that there had major defect in January 2007 which was exclusively within the knowledge of the complainant.  No manufacturing defect was complained until 2011 and filed this complaint.  It is admitted by the complainant that he has defaulted payment of monthly dues to the financier.  He approached the Forum Below after receipt of the notice from the financier claiming loan arrears.  From the statements in the complaint it is to be read out that the financier sold the vehicle after repossession and the balance due was claimed from the complainant and thereafter only the complaint is filed.  It is very clear that the complainant was a chronic defaulter of his monthly instalments to the financier.  A defaulter is estopped from seeking remedy under deficiency in service and for replacement of vehicle alleging manufacturing defect which was not raised at the earliest point of time within the warranty period.  Hence the complaint is to be dismissed.

6.  The evidence consisted of the oral testimony of the complainant as PW1 and Exbts. were marked as A1 to A17, on the part of the opposite parties B1 receipts were produced.  The Forum came to the conclusion that there is unfair trade practice on the part of opposite parties and sold the vehicle to 3^rd party without the consent and knowledge of complainant and allowed the complaint.

7.  In appeal No.139/14 the appellant is the 1^st opposite party and the 1^st respondent is the complainant, opposite parties 2 to 4 are the respondents/opposite parties.  The argument putforth by the appellant/1^st opposite party is that while alleging manufacturing defect it is to be proved by the complainant u/s 13(1)(c) of Consumer Protection Act which is mandatory.  In this case no expert evidence is adduced to prove the case of manufacturing defect by the                1^st respondent/complainant. The vehicle purchased on 23/01/07 and the complaint is filed in 2011.  The complainant issued a lawyer’s notice on 7/9/2009 thereafter the complaint filed only in April 2011.  The in-ordinate delay in filing the complaint on the part of the complainant is liable to be dismissed by the District Forum under Section 24(A) of the Consumer Protection Act.  The District Forum had not considered that the vehicle purchased by the complainant was re-possessed by the finance company and subsequently sold.    It is settled principle of law that onus is on the complainant to prove whether there is any manufacturing defect in the vehicle.  In the absence of any material to substantiate the allegation of the complainant with regard to the manufacturing defect in the vehicle the complaint is liable to be dismissed in-limine.  The manufacturing defect in the vehicle has been alleged by the complainant after          4 years of purchase and even after 2 years of its possession by the finance company is only to defeat the proceedings initiated at the instance of the finance company.  The re-possession was under the terms and conditions of the agreement and no manufacturing defect can be alleged on a vehicle which was not possessed by the complainant at the time of filing the complaint.

8.  The appellant in A-425/14 are the 2^nd and 3^rd opposite parties and the 1^st respondent is the complainant, 2^nd and 3^rd respondents are the 1^st and 4^th opposite party.  It is admitted that the 1^st respondent/complainant issued lawyer notice on 7/9/09 to the appellants and respondents 1 and 4 that his vehicle suffered from manufacturing defect and sought for refund of the amount and also to withdraw further proceedings of the recovery of the loan amount.  It is pleaded that if there had any manufacturing defect in the vehicle during 2009, the 1^st respondent could have filed the complaint within a reasonable time.  In this case even after alleging manufacturing defect from the very beginning of purchase of the vehicle the complaint is filed in April 2011 without assigning any reason for delay on the part of the complainant.  The District Forum ought to have dismissed the complaint as time barred under Section 24(A) of the Consumer Protection Act.  It is admitted by the 1^st respondent that the appellants re-possessed the vehicle on 30/8/2009 on issuing Exbt. B2 letter on 14/7/09.   It is argued that the complainant was a chronic defaulter and even after receipt of Exbt. B2 the complainant had not remitted the amount and as the vehicle was lying idle and without any repayment the appellants were constrained to sell the vehicle to      3^rd party.  The complainant was aware of the sale of the vehicle and it was also within his knowledge that the vehicle was re-possessed and sold and filed complaint in 2011.  The complainant who is not in  possession of the vehicle cannot file a complaint as he is the owner of the vehicle and he is no more a ‘consumer’ as per the Act.         The complainant failed to produce any evidence to substantiate the allegation of the manufacturing defect in the vehicle.  It is an admitted fact by the 1^st respondent that as per the terms and conditions of the agreement the complainant is liable to pay the instalments defaulted and the over due charges for the instalments.  It is also clear from the deposition that the cheques issued were returned on the ground of insufficiency of funds and as such over due charges are entitled by the appellants for the delay in payment of instalments.  All these facts were not considered by the District Forum.  The complainant is not entitled for any compensation being a defaulter of instalments the complainant is liable to pay as per the terms and conditions of agreement. 

9.  The 4^th opposite party is the appellant in appeal No.164/14 and the 1^st respondent is the complainant and respondents 2 to 4 are the opposite parties 1 to 3.  It is argued that the complaint is filed in March 2011 after the expiry of the warranty period and also on receipt of the notice from the financers. The complainant came forward alleging manufacturing defects in his vehicle.  It is admitted that the vehicle had brought to the appellant for periodical services and for other minor repairs.  On all those occasions all the periodical services and repairs were carried out to the satisfaction of the                        1^st respondent/complainant free of cost under warranty issued by the manufacturer during the period from 30/01/07 to 5/11/2008.  No major complaints were ever reported to the appellant.  No convincing reason was brought forward by the 1^st respondent for the delay in filing the complaint until March 2011.  It is clear that the                      1^st respondent/complainant came up with the complaint after the receipt of the notice from the financier claiming loan arrears.  There is no deficiency in service on the part of the appellant.  Hence the question of payment of compensation does not arise and the Forum Below failed to consider the same.  The liability of proving the manufacturing defect is to be established by expert opinion which is lacking in this case.

          10.  We have heard the counsels and have gone through the records.  It is an undisputed fact that the vehicle purchased from the 4^th opposite party on 23/01/2007 and the complaint is filed on 18/05/2011. It is clear from documents that the 1^st respondent/ complainant raised the complaint about certain minor defects and had visited the service centre for 11 times out of which   7 were for the scheduled servicing and 4 were for minor repairs within 2 years.  During that period there had no allegation of the manufacturing defect reported to the appellants.  It is also clear from the documents that no expert opinion was taken by the 1^st respondent with regard to the manufacturing defect suffered by the vehicle in question.  The 1^st respondent produced the Advocate’s notice sent to the appellant in  A-139/09 and thereafter the 1^st respondent waited since 2011 to file the complaint itself shows that the complaint is barred by limitation under Section 24(A) of the Consumer Protection Act.  It is also evident from the documents that the vehicle was repossessed by the appellants 2^nd and 3^rd opposite parties in August 2009 from the statements alleged in the complaint itself.  The complaint was filed after receiving the notice from the appellants/2^nd, 3^rd opposite parties to remit the arrear of loan account after deducting the amount of Rs.1,55,000/- received from the sale proceeds of the vehicle. The vehicle was sold to a 3^rd party by the appellants to recover the due loan amount from the 1^st respondent as the 1^st respondent was a defaulter in payment of the loan account.  As per the records submitted by the 2^nd and 3^rd opposite parties it is clear that the complainant defaulted several repayments so also incurred overdue charges.  The cheques issued in favour of the appellants by the 1^st respondent was returned due to insufficient funds is clear from documents. At this juncture the 1^st respondent came up with the allegation that the vehicle was having manufacturing defect and filed the complaint.

          11.  We would like to point out that the issuance of lawyer notice to the appellants in 2009 and sitting upon for more than 2 years does not extend the limitation.  While alleging manufacturing defect it is to be proved by expert and no expert opinion is on the file to prove the case of the 1^st respondent.  We rely on the judgment of Hon’ble National Commission in the case of Maruti Udyog Ltd. Vs. Dr. A.S. Narayan Rao & Others 2010 CPJ 19(NC) the necessity of expert evidence to prove the manufacturing defect in the vehicle under  Section 13(1)c.  The Forum Below without considering the time limit and also without going into the allegation of manufacturing defect allowed the complaint is not sustainable based on the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Another                      JT 2006(4) SC 113. Further it is stated in the complaint that the vehicle was repossessed by the appellants and sold to 3^rd party for Rs.1,55,000/.  In that instance the 1^st respondent is not in possession of the vehicle is crystal clear and he cannot be considered as a ‘consumer’ under Consumer Protection Act.  A person who is not having the vehicle in possession cannot be considered as a ‘consumer’ so also he cannot be termed as a ‘complainant’ and the complaint totally fails.

          In the result, the appeals 139/14, 425/14 & 164/14 are allowed setting aside the order passed by the Forum Below.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

 

 

A. RADHA           :        MEMBER

 

 K. CHANDRADAS NADAR :  JUDICIAL MEMBER

 

 

 

SANTHAMMA THOMAS     :        MEMBER

 

Sa.

 

 

 

 

 

 

 

 

 

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

 

 

 

 

 

 

 

 

COMMON JUDGMENT

APPEAL NOS.139/14, 425/14 & 164/14

DATED 28/05/2015

 

 

 

 

 

 

 

 

Sa.