DR. INDER JIT SINGH, MEMBER

1.       The present Revision Petitions have been filed by the Petitioner against Respondents as detailed above, under section 58 (1) (b) of Consumer Protection Act 2019, against the common order dated 21.03.2022 of the State Consumer Disputes Redressal Commission Delhi (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 719 and 486 of 2014 in which order dated 09.04.2014 of District Consumer Disputes Redressal Commission-II, Qutub Industrial Area (hereinafter referred to as District Commission) in Consumer Complaint (CC) no 1039 of 2005 was challenged, inter alia praying for setting aside the order dated 21.03.2022 of the State Commission.

2.       Notice was issued to the Respondents.  Petitioner filed Written Arguments/Synopsis on 10.07.2024 and respondent no.1 filed Written Arguments / Synopsis on  18.07.2024 respectively.

3.       Brief facts of the case as presented by the Complainant as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that on 14.05.2004, Complainant, namely, Harpreet Singh purchased a new Car make TATA Indica V2 for a sum of Rs.3,71,418/- manufactured by Tata Motors ( hereinafter referred to as OP No.1) through its dealer Sanya Automobiles Pvt. Ltd. ( hereinafter referred to as OP No.2).  The warranty provided on the said vehicle was for 18 months and extended warranty was for 3 years from the date of its purchase.  The car was covered for any manufacturing or workmanship defects by the manufacturer.  It is the case of the Complainant that since the day of purchase, it started giving problem.  Complainant reported the matter to OP No.2 just after a week of the purchase.  The vehicle was left at the service station but the defects pointed out by the Complainant like faulty shock absorber, low mileage, poor pick up with AC engine etc were  not rectified.  Complainant took the vehicle at the service station on 13.07.2004, 04.08.2004, 12.10.2004, 16.03.2005, 20.07.2005, 15.09.2005 and 04.10.2008 for the removal of said defects but inspite of changing / replacing the parts, the defects still persisted.  It is further the case of the complainant that though the vehicle was under warranty period, yet OP No.2 demanded money and complainant paid the amount as per bills. 

4.       Further, on 15.09.2005, when the vehicle was left with OP No.2, its engineer while driving the same ( test drive ) met with an accident with a truck, resulting a lot of damage to his car.  Complainant took photographs of the accidental vehicle.  He sent letters / emails to OP No.2 requesting it to repair the vehicle but OP No.2 failed to rectify the defects.  On 24.02.2006, complainant got his vehicle inspected through Mechanical Automobile Engineer and after thoroughly inspection of his vehicle, opined that vehicle was suffering from manufacturing defect.  Even the pollution level of the vehicle was so excessive that he was unable to get the pollution certificate from the authority concerned.  Being aggrieved, the  Complainant filed CC before the District Forum and District Forum vide order dated 09.04.2014 directed both the OPs to refund the entire cost of the vehicle and to pay a lumpsum amount of Rs.1,00,000/- to the complainant and complainant shall return the used / defective vehicle to the OPs on receipt of payment from the OPs.   Being aggrieved,  both the OPs i.e. OP No.2 ( Sanya Automobiles ) filed FA No. 719 of 2014 before the State Commission and OP No.1 ( Tata Motors ) filed FA No. 486 of 2014 before the State Commission and the State Commission vide order dated 21.03.2022 held the manufacturer ( Tata Motors / OP No.1) liable for payment of the whole decretal amount.  State Commission absolved OP No.2 for any liability.  Hence, the Petitioner ( Tata Motors ) is before this Commission now in the present RPs.   

5.       Petitioner has challenged the said Order dated 21.03.2022 of the State Commission mainly on following grounds:

i.        State Commission failed to exercise its power as vested in view of provision of Section 38 (2) of the Consumer Protection Act, 2019 to refer to appropriate laboratory /  independent expert with a view to find out the defects do exist / vehicle is having manufacturing defect, so that report by an expert should come on record regarding finding of fact. The finding of the State Commission is not supported by an expert report regarding quality of the product as the subject matter is foreign.  Reliance is placed on the judgments of the Hon’ble Supreme Court in Consumer Unity and Trust Society Vs. Chairman and Managing Director, Bank of Baroda reported in ( 1995) 2 SCC 150 and Union of India Vs. Seppo Rally reported in ( 1999) 8 SCC 357 and Godfrey Philips Vs. Ajay Kumar JT 2008 (4) SC 647. 

ii.       State Commission  has failed to appreciate that on 04.08.2004, 12.10.2004, 22.12.2004 and 16.03.2005, the vehicle had been reported for availing four mandatory free services and for other dates, the vehicle was reported for removal of operational issues which are bound to occur due to usage of the vehicle such as silencer, sounds from suspension, steering assembly, fuel injection pup and consequently repairs were carried out by replacing parts such as cam shaft, ball joint, thermostatic valve, RR steering rack, horn replacement etc.  The said repair work was carried out on Free of cost (FOC) basis as per terms and condition of the warranty.  Further, none of the complaint was repeated after rectification of the same by the dealer.

iii.      State Commission failed to appreciate that mere visits to the workshop for carrying out free mandatory services, routine general check up, running repairs or communication written in this regard to the higher official ipso-factor does not prove that the vehicle was defected as was held by this Commission in Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad and Ors. decided on 07.05.2010 and Classic Automobiles Vs. Leela Nand Mishra and Anr. I ( 2010 ) CPJ 235 (NC). 

iv.      State Commission failed to appreciate that on 22.11.2009, the vehicle had covered 59147 kms in a span of 5 years from the date of purchase and on average 50-60 km per day.  Had there been any manufacturing defect, it could not be able to cover mere 100 kms.

v.       The Petitioner as per the terms and conditions of the warranty had been performing its part of obligation as envisaged under terms and conditions of warranty which is binding upon respondent no.1 and no relief can be granted beyond the terms and conditions of warranty. Even the courts cannot pass any order contrary to the terms and conditions of the warranty.  Reliance is placed on the judgment of Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra ( 2006) 4 SCC 644, Bharti Knitting Vs. DHL Courier 1996 (4) SCC 704. Further, the impugned judgment is contrary to the judgment of this Commission in Mahindra and Mahindra Vs. B.G.Thakur Desai 1993-1-CPR 170 and Dr. Hima Vasanti Lal Dakoria Vs. Bajaj Auto Ltd. and Ors. II (2005) CPJ 102.  

vi.      State Commission failed to appreciate the law laid down by the National Commission in Tata Motors Vs. Kushal Singh Thakur and Anr – RP no. 1153 of 2009 wherein it was held that complaints in the vehicle beyond the warranty period cannot be looked into by the Foras. 

vii.     State Commission failed to appreciate the fact that admittedly the vehicle had been running on road for about 5 years though allegedly with defects but even in that scenario, the Fora ought to have deducted the depreciation value of the vehicle for its use all these years.  Reliance is placed on the judgment of Hon’ble Supreme Court in Tata Engineering and Locomotive Co. Ltd. and Anr. Vs. Gajanan Y Mandreka JT 1997 ( 6) SC 20.

viii.    State Commission failed to appreciate that none of the defects pointed out relate to engine or its performance and that the defects pointed out by the complainant are due to extensive use of vehicle which is apparent from the fact that form the date of purchase i.e. 13.05.2004 and till filing of complaint i.e. 07.11.2005 it had covered 35427 kms i.e. within a span of less than 18 months which clearly show that vehicle does not suffer from any defect mush less than manufacturing defect.

6.       Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1     Learned counsel for the Petitioner apart from arguing the points which have been stated in para 5 argued that National Commission has held that where the complainant fails to prove any manufacturing defects, the complaint on that count is liable to be dismissed.  Learned counsel has relied on the orders of this Commission in Randhir Singh Vs. M/s Maharaja Auto Wheels ( P) Ltd. & Anr. – RP No. 3149-3150 of 2017 and Mercedes Benz India Private Ltd. Vs. Revathi Giri and Ors. – FA No. 766 of 2021.   Learned counsel further argued if at all there is deficiency in service committed by dealer, the manufacturer cannot be burdened with liability.  Reliance has been placed on the judgment of the Hon’ble Supreme Court in Tata Motors Ltd. Vs. Antonio Paulo Vaz and Anr. – Civil Appeal No. 574 of 2021 and Classic Automobiles ( supra ). 

6.2.    Learned counsel for Respondent No.1 argued that in case of Tata Motors Ltd. Vs. Prashanthai Premshankar Vyas and Ors. (2016 SCC Online NCDRC 221), the National Commission has held that manufacturer is liable for the action of its dealer.   It is further argued that since 2007, the said vehicle has stopped functioning completely as after such period, all repairs in the said vehicle also stopped and respondent no.2 refused to check the said vehicle any further as the warranty period had also lapsed.  It is further averred that said vehicle had only run for the period during which it was repaired and as soon as the repairs and the maintenance of the said vehicle stopped, the said vehicle also stopped functioning.  There were many defects in the vehicle like Shock absorber ( replaced ), fuel pump ( replaced ), thermos expansion valve ( replaced), engine oil leakage ( oil filter replaced on many occasions), horn ( replaced ) etc. Further, major components were damaged and replaced within a few months of the purchase of the said vehicle, which clearly establishes that there were major inherent manufacturing defects in the said vehicle that could not be fixed despite repeated repairs and replacements and by the time the said vehicle stopped functioning in January 2007, all the major components of the said vehicle had been replaced which still did not lead to the proper functioning of the said vehicle. 

6.3.    Learned counsel further argued that expert opinion filed by the Respondent is a reliable one since the said vehicle was inspected by Mr. Balwinder Singh Cheema, Mechanical Automobile Engineer, Surveyor and Loss Assessor.  The Petitioner has failed to establish that defects and problem in the vehicle caused due to the extensive usage of the vehicle.  In the year 2005 itself, there were around 8 visits made by respondent no.1 to the workshop of the respondent no.2 and vehicle was kept in the workshop for a period  of 10 days.  Even though the said vehicle was within the warranty period, the respondent no.2 demanded money from respondent no.1 and same was duly paid.  Further, since the last so many year, the vehicle was lying idle and stationary outside the complainants residence and they were getting notices from SDMC and now with NGT order, the vehicle being 18 years old, not being drivable, was sized by the authorities. 

7.       We have carefully gone through the order of the State Commission, District Forum, other relevant records and rival contentions of the parties. District Forum after considering the evidence before it, especially the job records and expert report, held both OP Nos.1 and 2 guilty of deficiency in service and directed them to refund the entire cost of the vehicle.  District Forum observed that whenever a person purchases a new good and if the same is found to be so defective that it needs to be replaced by another new good of similar description, then the same be replaced by such a good.  District Forum has also observed that on perusal of various job cards, it is quite evident that every time complainant has paid some amount to the opposite parties either for some replacement of the parts or service.  Major defects developed in the short span of purchase of the vehicle. There is no doubt that many a times the parts were replaced by the OPs but that does not absolve OPs from their liability.

8.       Before the State Commission, the manufacturer / Petitioner has contended that no relief can be granted against the manufacturer beyond the warranty period.  Dealer / respondent no.2 contended that it is only a service provider, who sells cars manufactured by the manufacturer and had duly provided the services to the Complainant, hence they are not liable for deficiency in service.  State Commission after considering the evidence before it, especially the job cards, observed that defects in the vehicle in question were persistent and were not rectified even after various attempts by dealer.   It is therefore, established that there were manufacturing defects in the vehicle in question.  State Commission further observed “on perusal of the job cards available on record, it is noted that the Dealer had duly provided all the post-sale services to the respondent, as and when required with respect to the vehicle in question.  The dealer is only responsible for his services to the buyers and, therefore, the dealer cannot be held liable for the manufacturing defects on the part of manufacturer.  With respect to manufacturer’s liability, the State Commission observed “the manufacturer is gravely mistaken with the present contention.  It is the responsibility of the manufacturer to deliver a product  which is of merchantile quality and adheres to the industry standards.  When it fails to do so, it can be construed that it has fell short of its responsibility.  It has already been established that the car had several manufacturing defects due to the paucity of the Manufacturer, which hindered the right of the Respondent of enjoying a quality product.  Therefore, we hold that the Respondent has suffered loss or injury on account of negligence by the Manufacturer”.    The State Commission  held manufacturer liable for manufacturing defects in the vehicle in question and held that dealer is not liable.

9.       There are concurrent findings of both the fora below with respect to manufacturing defect in the vehicle and negligence / deficiency in service on the part of the manufacturer.  It has been held by Hon’ble Supreme Court in catena of judgments[1] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity.  It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record.

10.     The Complainant had contended that the car has been given to the service centre number of times, and many parts have been changed / modified / repaired as detailed below due to severe manufacturing defect:

a) Shock absorber                                       

b) Modified twice and then changed fuel pump

c) Valve of AC changed

d) Engine oil leakage. rectified

e) Problem of silencer repaired

f) Gaskets changed (twice) in one month

g) R/R Steering Rack Assy replaced

h) Horn replaced 3 times

i) Replaced front Strut

j) Crank Shaft front seal renewed

k) Engine oil leakage repaired

l) Steering wheel

m) AC facia plate

n) GBS LH Tulip Joint replaced

o) Diassemble & Assemble differential cage assembly

p) Drive shaft LH replaced

q) Gear box problem tried to unsuccessfully repair

r) Wheel alignment done number of times

s.) Axle changed

t) Assy. Power R & P gear (RHD) replaced

u) Assy. Vacuum pipe diesel RHD replaced

v) Brake vacuum pipe replaced

w) E Kit replaced

x) Cylinder cover renewed

y) Electrical Wiring problem

z) Hood shell replaced

aa) Head lamp replaced

bb)Assembly frame radiator support repaired

cc) Assembly cross mbr bumper repaired

11.     After careful consideration of various job cards, invoices, the correspondence between the parties and the technical survey / road test report dated 24.02.2006 of Mechanical Automobile Engineer, who is a licensed surveyor and loss assessor, we are in agreement with the findings of the State Commission about the manufacturing defects in the vehicle.  Extract of relevant paras of the Expert report is reproduced below :

Observations:

• After listening to owners version and scrutinising the job cards, dealer invoices and written complaints made by owner and driving and inspecting the subject vehicle I have observed the following points:

• There were numerous problems faced by owner from the date of purchase till now, which repeated complaints and replacements have also not been able to rectify.

• Owner had purchased the subject vehicle for economical & comfortable commuting. The very purpose of buying subject car has been defeated due to innumerable problems that dogged the subject ear and are still around.

• The Dealer responses are reasonably good as he has given maximum replacements under warranty and also roadside repairs whenever the need had arisen but the subject car appears to be more demanding than any average TATA Motors dealer could expect it to be. The negligence on part of dealer is of accident that happened during one road test drive of subject car but then they (dealer) repaired it FOC charging nothing from owner. The accidental job is done well and I have checked the parts that were replaced which are genuine TATA parts.

• The major problems in subject car are with all major assembles like Engine ( his head has been opened twice),Then opened mare that twice). Gear Box Assy, (needs major repairs in current position), drive shafts, shock, absorbers, power steering, assy, fuel, injection pump, drive shafts, shock absorbers ( all replaced under warranty)

• He subject car after having all these replacements is still not in a fit position and needs major repairs esp. Gear Box Assy. The Engine Assy failed the pollution test conducted recently and may need major overhaul or replacement in near future

• The tyre wear pattern on the two older tyres fitted on the Rear side show that the vehicle had major Steering and Suspension problem resulting in irregular wear and premature wearing reducing life and thereby costing owner many thousand rupees as the tyres do fall under warranty even if the reason for wear is the problem with the Steering or Suspension

• The resale of subject car having so many problems and one major accident where Bonnet etc was replaced and repainted is much lower to a normal car of the same model and make again owner loosing precious money

Opinion

In any opinion, the subject car in its present form, is in a miserable condition and its future is not good  one as the extended warranty will also end one day and there are other problems that even extended warranty cannot solve. The time & money required to drive and upkeep subject car are too taxing and also requires great willpower and patience for the same. Also as the subject car will age the problems will only compound and will he frustrating ones. Then there is a fear factor driving such car that may breakdown or malfunction at any time and place and may not be available to owner when he requires it the most defeating the very purpose it was purchased for. There are various in-built problems in this subject car, which only its complete replacement can set right. Owner has suffered due to poor workmanship of the manufacturers and its vendors/dealers for which he should be suitably compensated and strict action may be taken against all responsible for manufacturing and selling such a car so that nobody else suffers as  Shri Harpreet Singh has suffered.

This report is issued without prejudice on the basis of detailed survey analysis and scrutiny of available facts and includes physical verification and road testing of subject car. It is in no way intended to malign anybody whether individual or company and is certainly not aimed at providing any leverage to applicant so that he can exaggerate the compensation. All the observations and comments are based on logics, available facts,  knowledge of subject and are/ most reasonably worded seeing the ground reality.

12.     State Commission has given a well-reasoned order and we find no reason to interfere with its findings.  We are also in agreement with the findings of State Commission that it being a case of manufacturing defect, manufacturer alone is liable and dealer is not liable.  There is no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  Accordingly, both the Revision Petition Nos. 701 and 737 of 2022 are dismissed.

13.     The pending IAs in the cases, if any, also stand disposed off.