DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No: 357 of 2010]

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              Date of Institution : 03.06.2010

                   Date  of Decision   : 27.07.2012

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Pawan Kumar son of Shri Tej Ram, age 41 years, Resident of 272, Shivalik Vihar, Zirakpur, Punjab.

                                  ---Complainant

VERSUS

[1]  HIND Motors (India) Limited, 9 and 15, Industrial Area, Phase-I, Chandigarh, through its Manager.

[2]  Hind Motors (India) Limited, Accidental Repair Workshop, 815, Industrial Area Phase-II, Chandigarh through its Works Manager.

[3]  TATA Motors Ltd., SCO No. 170-171, Sector 17-E, Chandigarh, through its Manager.

---Opposite Parties

BEFORE:  SH. LAKSHMAN SHARMA       PRESIDENT

MRS. MADHU MUTNEJA             MEMBER

         SHRI JASWINDER SINGH SIDHU MEMBER

Argued By:    None for Complainant.

          None for Opposite Parties No.1 and 2.

          Sh. P.K. Kukreja, Advocate for Opposite Party No.3.

PER JASWINDER SINGH SIDHU, MEMBER

1.      Complainant has filed the present complaint, against the Opposite Parties on the grounds that, the Complainant purchased a Tata Indica Vista Quadra Jet car bearing Regn. No. PB-65-J-1695 on 27.2.2009 by paying a sum of Rs.4,76,700.41/- through invoice dated 27.2.2009 (Annexure C-1). The vehicle carried a warranty for a period of 24 months from the date of sale or 75000 Kms which ever occurred earlier. The warranty conditions are at Annexure C-2.

        The vehicle of the Complainant started consuming the engine Mobil oil in the month of March, 2010, The Complainant approached the Opposite Party and complained about the problem experienced by him. The mechanic of the Opposite Parties after its examination gave an estimate of Rs.83000/- for the repairs citing that the vehicle required engine overhaul, turbo charger and lathe job. The Complainant claims that the Opposite Party refused to repair the vehicle saying that the defect in the oil sump (chamber) was found hit by some external force. Thus, the defect in the vehicle was not covered under warranty conditions as the same did not mean a manufacturing defect. Thus, the Opposite Party claimed to carry out the job on payment basis as the case of warranty of engine was not acceptable.

        The Complainant aggrieved of the act and stand taken by the Opposite Parties has filed the present complaint claiming that the sole motive of the Opposite Party was to harass the Complainant and avoid the genuine claim of the Complainant with regard to the vehicle in question under warranty period. The Complainant claims that the demand of Rs.83,000/- on account of repairs of the vehicle is totally uncalled for, thus, alleging deficiency in service on the part of the Opposite Parties, has prayed for the following relief: - 

[a]  Estimated loss caused to the vehicle of Rs.83,000/- as per Annexure C-3;

[b]  Rs.1,00,000/- on account of mental harassment suffered by the Complainant at the hands of the Opposite Parties.

[c]  Rs.1,00,000/- on account of loss of efficiency of the Complainant;

[d]  Rs.50,000/- on account of unnecessary indulged litigation;

        The complaint of the complainant is duly supported by his detailed affidavit.

2.      The Opposite Parties No.1 and 2 have contested the claim of the complainant by filing their joint reply, taking preliminary objections to the effect that the Complainant has concealed material facts from this Forum and has not disclosed that the vehicle in question is an accidental vehicle, and was got repaired on 18.06.2009 from Garyson Motors, Ludhiana, after covering a distance of 9153 Kms. after its purchase. The relevant document is annexed at Annexure OP-1/1. As the warranty of the vehicle has been lapsed, the Complainant is not entitled for any relief. As the Complainant has alleged manufacturing defect, the same cannot be addressed by Opposite Party NO.1 and 2, as its agreement with the manufacturer is on ‘principal-to-principal’ basis and the problem can only be addressed by the manufacturer only and not by the Dealer Opposite Parties No.1 and 2 in the present case.  

        On merits, the Opposite Parties No.1 and 2 have repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. While reply to para no.4 of the complaint, on merits, Opposite Parties No.1 and 2 have quoted condition 7 of the warranty which reads as under: -

“This warranty shall be null and void if the car is subjected to abnormal use such a rallying, racing or participation in any other competitive sport. This warranty shall not apply to any repair or replacement as a result of accident or collusion.” 

        The Opposite Parties have categorically stated that the Complainant has concealed the material facts by not disclosing the factum of the repair of the vehicle from Garyson Motors Ludhiana on 18.6.2009 after suffering any accident. In order to support their conditions, Opposite Parties No.1 and 2 submitted Annexure OP-1/1 at page 12 of their reply.

        The reply of the Opposite Parties No.1 and 2 is supported by a detailed affidavit of Sh. R.P. Singh, Assistant Manager Legal.

3.      The Opposite Party No.3 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect by repeating the averments, as submitted by the Opposite Parties No. 1 and 2. The Opposite Party No.3 has further stated that the Complainant had failed to follow the guidelines given in the operator’s service book as recommended for the smooth and better performance of the vehicle. A table of recommended service schedule of the vehicle in question (Annexure R-3/1), a copy of written warranty terms (Annexure R-3/2) are submitted along with their reply. 

        On merits, the Opposite Party No.3 has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply.    

        Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party No.3 prayed for the dismissal of the complaint, with exemplary costs.  

        The reply of the Opposite Party No.3 is supported by a detailed affidavit of Sh. M.S. Pradeep, Sr. Manager Law.

4.      It is important to mention that on the concluding day, when the case was fixed for arguments, none appeared on behalf of the Complainant and Opposite Parties No.1 & 2. Hence, the present complaint was proceeded to be disposed off on merits under Rule 4(8) of the Chandigarh Consumer Protection rules, 1987 read with Section 13[2] of the Consumer Protection Act, 1986 (as amended up to date).

5.      Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the Opposite Party No.3, we have come to the following conclusions.

6.      The facts with regard to the qualifications of the Complainant on having purchased the vehicle from the Opposite Parties No. 1 and 2 are not contested. However, the Opposite Parties No.1 and 2 while handing out the estimate (Annexure C-3) dated 24.3.2010, has mentioned that the vehicle in question needed the following repairs described as (i) Engine Overhaul (ii) Turbo Charger (iii) Lathe Job, of which the labour charges as well as the value of spares including service tax @10.3% was estimated at Rs.83,000/-. Further claiming that the same may increase by 10% on actual dismantling of the vehicle. This certificate further mentions “the said job has to be carried out on payment basis as the oil sump (chamber) has found to be hit by some external force. So in that case warranty of engine is not accepted”.       

7.      The Opposite Parties No.1 and 2 were once again addressed by the Complainant, through his letter dated 15.4.2010, sent by registered post, and thereafter through the legal notice dated 14.5.2010, and both these were not answered at all by the answering OPs . The Opposite Parties No. 1 and 2 has not brought on record the job card which they may have raised when the vehicle was brought to their accidental repair workshop on 24.3.2010, meaning thereby, that the certificate (Annexure C-3), issued under the signatures of the Service Adviser, was actually issued after superficial inspection of the vehicle without actually inspecting the engine. Even the fact with regard to the oil sump (chamber) having been hit by an external force, has not been conclusively proved, as the Annexure C-8 (photograph) submitted by the Complainant with the present complaint, does not show any dent on the oil sump, though normal corrosion of the paint is visible. The Opposite Parties No.1 and 2 has also not cited that the impact of external force has caused the leakage of oil from the oil sump and the same is also not visible in the photograph (Annexure C-8), to explain the consumption of Mobil oil by the vehicle.

8.      The Opposite Parties No.1 and 2, in order to establish the veracity of their opinion, mentioned in Annexure C-3, has brought on record, a document Annexure OP-1/1 purported to be the part of the records of Garyson Motors Pvt. Limited, Ludhiana, where on 18.6.2009, the vehicle in question, was repaired, after having suffered accident. Even the alleged external impact on the oil sump is also attributed to the same accident, which the vehicle in question, according to them, had suffered. This aspect has not been convincingly proved by the answering OPs, thus, is ignored. 

9.      We have minutely perused the Annexure OP-1/1, but have failed to come across the registration number of the vehicle, the engine number of the vehicle, the chassis number of the vehicle, and not even the name of the Complainant, which could establish that this document pertains to the vehicle in question. Furthermore this document is also not supported by the affidavit of the authorized person on behalf of Garyson Motors Pvt. Limited, Ludhiana. Hence, in these circumstances, the genuineness of document OP-1/1 heavily relied upon by the Opposite Parties, to prove it contentions is not established, and is out rightly ignored.

10.     In the present circumstances, the superficial assessment of the damage to the engine of the vehicle in question by Opposite Parties No.1 and 2, is not corroborated by cogent, convincing and reliable evidence. However, the demand of assessed amount of Rs.83,000/- required for the repairs of the vehicle in question demanded by the Opposite Parties No. 1 and 2 is totally out of context as the vehicle on the time of this assessment was very much within warranty period of 24 months from the date of purchase i.e. 27 Feb. 2009. Thus, the demand of Rs.83,000/- towards the repair of engine, which according to the Opposite Parties No.1 and 2, is totally uncalled for as the opposite parties 1&2 were bound by the warranty conditions. At the same time the answering OPs have also failed to establish that the Complainant had breached the clause 7 of the warranty conditions alleged by them, in their reply.

11.     Thus, in the present circumstances, we feel that the averments of the Complainant have gone unrebutted in the absence of any trustworthy rebuttal from the side of the Opposite Parties. Hence, the present complaint deserves to be allowed.   

12.         In the light of above observations, we find a definite deficiency in service on the part of the Opposite Parties No.1 and 2. The present complaint of the Complainant succeeds against the Opposite Parties No.1 and 2, and is allowed qua Opposite Parties No.1 & 2.

        The present complaint stands dismissed against Opposite Party No.3, as the present complaint is borne out of unsubstantiated assessment of Opposite Parties No.1 and 2, for which we do not find any reason to blame Opposite Party No.3. Hence, the Opposite Parties No.1 and 2 are directed:-

[a]  To repair the vehicle in question for the faults mentioned in the estimate dated 24.03.2010; or in case, the Complainant had got the same repaired, during the pendency of the present complaint, he is entitled for the reimbursement upto Rs 83,000/- only;

[b] Opposite Parties No.1 & 2 are also saddled with the consolidated amount of compensation to the tune of Rs.15000/- on account of harassment and mental agony suffered by the Complainant;

[c] To pay Rs.7,000/- as litigation costs.

13.     The above said order shall be complied within 45 days of its receipt by Opposite Parties No.1 & 2; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 12 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of the complaint, till it is paid.  

14.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

27^th July, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

  (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER