Kerala

StateCommission

A/13/289

TATA MOTORS OFFICERS & NETWORK PASSENGER CAR - Complainant(s)

Versus

LATHA - Opp.Party(s)

V KRISHNA MENON

30 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SISUVIHAR LANE, VAZHUTHACADU, THIRUVANANTHAPURAM

APPEAL NOS.148/13, 287/13 & A 289/13

COMMON JUDGMENT DATED:30/06/2016

(Against the order in CC Nos.98/2004 on the file of CDRF, Thiruvananthapuram)

PRESENT

SHRI.K.CHANDRADAS NADAR    : JUDICIAL MEMBER

SHRI.V.V. JOSE                                       : MEMBER

 

APPEAL NO.148/13

 

APPELLANT

 

M/s. Kulathunkal Motors,

          Kulathunkal Buildings,

          Over Bridge, M.G. Road,

          Thiruvananthapuram – 1.

 

          (By Adv: V.K. Mohan Kumar)

 

                                                                   Vs.

 

RESPONDENTS

 

1. Latha,

          W/o. Shaji, ‘Thiruvathira’,

          Ambalathinkara,

          Kazhakuttom P.O.,

          Thiruvananthapuram.

 

2. M/s. Tata Motors, Officers and Network,

          Passenger Car Business Unit,

          Marketing and Customers Support,

          26^th Floor, Centre No.1.,

          World Trade Centre,

          Caffe Parade, Mumbai – 400005.

 

3. Tata Motors,

          Passengers Car Business Unit,

          K.D Block, Pimpiri,

          Pune – 411018.

 

          (By Adv: Sri. S. Reghukumar for R2 & R3)

 

APPEAL NO.287/2013

 

APPELLANT

 

1. Latha,

          W/o. Shaji, ‘Thiruvathira’,

          Ambalathinkara,

          Kazhakuttom P.O.,

          Thiruvananthapuram.

 

          (By Adv: Sri. Kulathoor S.V. Premakumaran Nair &

          Adv: Sri. Rajmohan C.S.)

 

                                                                             Vs.

RESPONDENTS

 

1. M/s. Tata Motors Officers and Network,

          Passenger Car Business Unit,

          Marketing and Customers Support,

          26^th Floor, Centre No.1.,

          World Trade Centre,

          Caffe Parade, Mumbai – 400005.

 

2. Tata Motors,

          Passengers Car Business Unit,

          K.D Block, Pimpiri,

          Pune – 411018.

 

3. M/s. Kulathunkal Motors,

          Kulathunkal Buildings,

          Over Bridge, M.G. Road,

          Thiruvananthapuram – 1.

 

          (By Adv: Sri. S. Reghukumar for R1 & R2 and

 Adv: Sri. V.K. Mohankumar for R3)

APPEAL NO.289/2013

 

APPELLANTS

 

1. M/s. Tata Motors Officers and Network,

          Passenger Car Business Unit,

          Marketing and Customers Support,

          26^th Floor, Centre No.1.,

          World Trade Centre,

          Caffe Parade, Mumbai – 400005.

 

         

2. Tata Motors,

          Passengers Car Business Unit,

          K.D Block, Pimpiri,

          Pune – 411018.

 

          (By Adv: Sri. V. Krishna Menon &           Adv: Sri. S. Reghukumar)

 

                                                                   Vs.

 

RESPONDENTS

 

1. Latha,

          W/o. Shaji, ‘Thiruvathira’,

          Ambalathinkara,

          Kazhakuttom P.O.,

          Thiruvananthapuram.

 

         

2. M/s. Kulathunkal Motors,

          Kulathunkal Buildings,

          Over Bridge, M.G. Road,

          Thiruvananthapuram – 1.

 

          (By Adv: V.K. Mohankumar for R2)

 

 

 

 

 

 

COMMON JUDGMENT

 

SHRI.V.V. JOSE          : MEMBER

          These appeals are filed against the order of Thiruvananthapuram District Forum in OP 98/2004 dated 16/08/2012 directing the opposite parties to pay Rs.3,53,780/- along with Rs.25,000/- as compensation and
Rs.5,000/- as cost.  Appeal 148/2013 is filed by the 3^rd opposite party and A.289/13 is filed by 1^st  and 2^nd opposite parties to set aside the order of Lower Forum and to dismiss the complaint in Lower Forum.

          2.      Appeal 287/13 is filed by the complainant to set aside  the order and to allow the complaint with interest for the amount paid and compensation.

          3.      The case of the complainant in OP 98/2004 on the file of Trivandrum District Forum is as follows:

          The complainant had purchased a Tata Indica V2 Diesel car for Rs.3,65,617/- with financial assistance from the Bank on 29.09.2003.  On the third day of purchase the engine oil of the car was completely burnt off.  3^rd opposite party filled the engine with fresh oil, when approached.  The same defect was repeated on several occasions.  It was noticed that the vehicle is having low pulling power, compared to what is sated in Owners manual and service book and also guaranteed by opposite parties.  The vehicle is having other defects also like persistent starting trouble, improper functioning of radiator, excess smoke emitting etc.  As directed by the 3^rd opposite party the vehicle was entrusted with them to cure the defects on 15.12.2003 and was returned on 23.12.2003.  Even after the repair the vehicle was showing the same defects as earlier.  In this stage another defect was also shown.  If the AC is put into operation the vehicle will not move at all.  Vehicle was again entrusted with 3^rd opposite party on 7.01.2004 as per job card No.10002.  On examination it is found that the engine could not be repaired as there is manufacturing defect.  Complainant demanded the opposite party to replace the vehicle with another vehicle as per the warrantee, but opposite party turned deaf to the grievance and hence this complaint.

          4.      Opposite parties 1^st and 2^nd filed joint version contending as follows:        

          They questioned the very maintainability of the complaint as it was purchased after inspection and satisfaction.  The 3^rd opposite party has attended the vehicle on 13.10.2003 for the complaint of oil leak and advised the complainant to bring back the vehicle for 1000Kms so as to ascertain the actual nature of the complaint.  As per the advice she entrusted the vehicle on 18.12.2003 and returned on 20.12.2003 after replacing the half engine block of the vehicle.  On 7.1.2004 the complainant had taken the vehicle to the 3^rd opposite party.  No complaint regarding reduction of oil level, but for routine service.  Though the 3^rd opposite party made the vehicle ready after service on the same day the complainant had not taken delivery of the vehicle.   Even after letter dated 13.1.2004 and 9.2.2004 she was not ready tot take delivery.  As the vehicle of the complainant does not have any manufacturing defect, the opposite parties are not liable for a replacement as prayed by the complainant.  Hence prayed for a dismissal.

          5.      3^rd opposite party in their version contended that complainant had purchased a vehicle on her will and accord after being convinced on the quality of the vehicle.  The 3^rd opposite parties party topped up oil level on 13.10.2003 and advised to have an observation  for Kms 1000.  No other complaint was reported.  The 2^nd opposite party, on information, advised to check the compression of the engine and if in case the compression pressure is low, replace the ½ engine block irrespective of the vehicle having only run 2000Kms.  As per the request of 3^rd opposite party on 18.12.2003 complainant brought the vehicle and replaced the ½ engine block under warranty and delivered the vehicle on 20/12/2003 at the complainant’s house.  On 7.1.2004 complainant entrusted the vehicle to the 3^rd opposite party for routine service.  As the vehicle was well in order, they asked to take back the vehicle.  3^rd opposite party sent many letters to take back the vehicle, she did not done so.  No loss has been caused by the 3^rd opposite party, hence prayed for a dismissal.

          6.      In fact the complaint was allowed by lower forum earlier.  On appeal by the opposite parties the state Commission setaside the order and remanded the case with a direction that the case to be disposed after appointing an expert commission.  Accordingly lower forum appointed an expert commissioner one Mr. Sabu. V.R., M.Tech, Sr. Lecturer in Mech.  (Automobiles) Engineering, Sri Chithira Thirunal College of Engineering, Thiruvananthapuram.  He submitted report as Ext. C1.

          7.      Both parties have filed affidavits.  Exts.P1 to P14 were marked on behalf of complainant and Exts. D1 to D10 were marked on the side of opposite parties without objection.  No oral evidence was taken by either party.  The commissioner was also not examined even though objection was filed by opposite parties.        The Lower Forum framed and considered the following issues i.e. whether any manufacturing defect for the vehicle supplied and if so the entitlement   of relief sought by the complainant. 

          8.      The definite case of the complainant is that on the 3^rd day of purchase, the engine oil of the car burnt off completely and 3^rd opposite party filled the engine with oil.  The same defect repeated on several occasions. As per Ext.P2, opposite parties admitted the same.  The vehicle was delivered keeping it under observation for another 1000 Kms to ascertain the complaint.  On 18.12.2003 the car was again recalled to rectify the defect and delivered on 23.10.2003.  As per Ext.A1 the commissioner has reported excess oil consumption was found recorded on all the job cars prior to the major engine work.  As per the entries on job card No.9878 at 2063 the vehicle broke down again and was given to service centre of Ms. Kulathingal Motors on 15.12.2003.  It was recorded that half engine block replacement under warranty at that time.  This includes all the engine components like cylinder block, crank shaft, pistons, connecting rods etc. except the cylinder head.  Commissioner reports that generally the components like half engine will not be kept as ready stock and will be procured against order.  The job card No.10002 dated 7/2/2004 shows the odometer reading as 2778 Kms.  The complainant has registered complaint again related to low pulling, coolant leak, low mileage, burning smell from engine, excess smoke etc.  For rectification of the above complainants M/s. Kulathingal Motors send the fuel injuction pump to TVS and got rectified and the engine valve clearance adjusted.  At the time of initial inspection at the service centre the vehicle was brought from the junk yard and was in a very bad condition.  The body of the car was having dent all around and on the top roof.  There were patch works on many parts.  It was found repainted carelessly.  All the tyres including the spare wheel were found unevenly work out.  The seat and seat covers were found damaged.  The workshop manual / service manual was not produced to expert commissioner for reference to prepare the report.  The transmission oil and power steering oil was found leaking.  The engine cylinders were not having the recommended minimum pressure.  Commissioner has concluded that the vehicle was having excessive oil consumption right from the beginning.  The reason was not analysed by service centre and not brought to the notice of M/s. Tata in time though it was not entered in job cards.  The vehicle was having low pulling problem.  Due importance was not given to this problem and they kept on topping up the engine oil level many times.  The damage in engine cylinder and related components was the reason for excessive oil consumption.  Commissioner reports that this cannot be treated as a normal wear and tear or a usage problem, but it is a manufacturing defect on the engine.  The entries on job card No.10002 dated 7.1.2004 after the engine work showed low pulling problem and low mileage.  The service centre of

M/s. Kulathingal Motors could not show any documents of warranty for the replaced half  engine block or the bill or purchase order of half engine block from the manufacturer.  Eight days was taken for the engine work.  The condition of engine even at the time of inspection would have been satisfactory, if the half engine block was replaced.  Engine can be repaired by changing the piston rings alone or by changing the cylinder livers rather than changing the half engine block.  The average reading of cylinder pressure in dry compression test is well below the TATA recommended minimum compression of 18Kg for Indica V2.  It may be noted that the reading on wet test is found increased, due to the pressure of thick lubrication.  Opposite parties has filed objection to the commission report but the commissioner has not been examined.  Complainant has not filed any objection.  Opposite parties contented that the report cannot be considered as he was not examined by the complainant.  According to them the Hon’ble Supreme Court has stated that report of an expert commissioner should be based on cogent reasons and scientific materials supported with data and materials furnished, which forms the basis of his conclusions.  The same report was submitted without any tests and based on marked eye view of the vehicle, which is liable to be rejected.  Ext.C1 contains all scientific observations and was annexed pictures also.  According to the lower forum the commissioner has concluded the report on the basis of scientific opinion and convincing tests.  The contention of the opposite party that complainants purchased the car after inspection and satisfaction with test drives and computerized verification was well answered by the form below.  It is only after pulling the vehicle into regular use that the defect come out one by one and such defects cannot be understood at the time of purchase.  From the above discussions Forum is on the view that the complainant has succeeded in establishing her complaint.  From the above mentioned points it is suspected that half engine replacement for the engine was not done and the engine might have been overhauled by, replacing minimum components by the 3^rd opposite party.  Hence complainant is entitled for refund of the entire cost of the car along with compensation and cost and ordered accordingly.  The lower forum directed the opposite parties to pay Rs.3,53,780/- along with Rs.25,000/- as compensation and Rs.5,000/- as cost as per order dated 16.8.2012.  The compliance time granted was one month.  On default comply the order with 9% interest from the date of receipt of order.

          10.    Aggrieved by the order the 3^rd opposite party filed A.148/13 contending that the lower forum erred in finding that the 3^rd opposite party dealer has committed unfair trade practice and deficiency of service.  They contend that the non-examination of Expert Commissioner is fatal and not in conformity with the law laid by Hon’ble Supreme Court.  They allege that the direction to return the price of the car without ascertaining manufacturing defect is erroneous.  They want to be exhonourated from the liability found against them.

          11.    Appeal 287/13 was preferred by the complainant contending that the lower forum has erred in directing the opposite parties to refund mere the value of the car with a meager compensation after 10 years of purchase of the car.  They claim that they are entitled for interest for the whole period from the date of purchase of the car as the car was off the road within a small period of purchase and the car was purchased by availing financial assistance from bank.  So they are claiming interest in addition to what is granted by the forum below.

          12.    On the other hand A.289/13 filed by the manufacturer i.e. opposite parties 1 and 2 allege that the lower forum went wrong to arrive at a conclusion brushing aside the principles enunciated by the Hon’ble Supreme Court in similar cases.  They allege the report of the expert commissioner could not been taken on file without examining the commissioner.  They further states that even if the report is admitted and acted upon the forum below ought to have considered the lack of cogent reasons and materials to arrive at his conclusion.  They content that the vehicle was lying in the workshop of opposite party from 7.1.2004 and therefore the deterioration of the vehicle could not be attributed to the manufacturer.  It was due to the complainant’s omission and negligence.  They further content that the alleged defects could be rectified and hence refund of the value of the car could not be ordered.  They further content that as the complainant fail to prove the alleged loss, granting of compensation is unwarranted.  At the instance of all the appellants and their counsel the appeals were heard and disposed together.

          13.    The manufacturers contenting their appeal A.289/13 cannot be found convincing for various reasons.  In fact the case was allowed by the lower forum earlier more or less on the same findings. 

          14.    An appeal was preferred by all the opposite parties challenging the correctness of the order in the absence of a report from an expert commissioner.  Accordingly the case was remanded directing the lower forum to appoint an expert commissioner who will examine the vehicle and file report as to the condition of the vehicle at present and also what would have been the condition at the time of purchase, if possible and dispose the matter on merits.  Accordingly an expert commissioner was appointed.  The commissioner is a post graduate engineer and senior lecturer in Mechanical (Automobile) Engineering in Sree Chithirathirunal College of Engineering, Thiruvananthapuram.  He filed a detailed report with cogent reasoning.    Complainant has not filed any objection.  Opposite parties filed objection.  However with consent of the parties, the report was marked as Ext.C1.  The opposite parties not chosen to examine the commissioner.  Complainant has not filed any objection by accepting the entire finding of the report.  According to us it was the opposite parties, who had objection to the Commission report ought to have sought for summoning the commissioner and examining him to expose to bring out any irregularity in the commission report.  The opposite parties not chosen to do so and they cannot now come with this commission accusing the complainant and the forum.  The report was filed by the commissioner who was appointed by the forum considering all objections on their part and the commissioner filed the report after examining the vehicle in the presence of all contending parties.  The commission report is an evidence in this case and shall form part of the records and any parties in the case should examine the commissioner touching any of the matters referred to him found incorrect and ought to have exposed such irregularity by examination.  The irregularity alleged by the opposite party on the commission report ought to have been brought to the notice of the lower forum by the opposite parties then and there.  Moreover the vehicle was in the custody of the opposite party from 7/1/2004 and the commissioner examined the vehicle on 18.10.2010.  In similar circumstances the complainant is not required to obtain an expert opinion as the vehicle was in possession of the opposite party as laid by Hon’ble Supreme Court in MRF Vs. Jagadeesh Lal and another.  The allegation in A.289/13 that the defects could be rectified,  by replacing party and order of refund of value of the car is not justified, is not acceptable to us.  It was a brand new car and the defects were recurring from within a month of purchase.  Recurring of same defects which could not be rectified by trial and other methods by the manufacturer or their servicing agents is sufficient reason to order refund of the value of the car or replacement of the car.  The complainant has purchased the car by availing loan.  Needless to say the loan is subject to payment of interest.  Moreover the utility of car is also denied to the complainant since the car was lying in the workshop within a few months of purchase.  The complainant has to pay interest to the bank together with principal.  He should hire a car for all his travel requirements.  This two aspects will be sufficient to justify the order of compensation and payment of interest.  In this case lower forum has not directed to pay interest for the whole period is not fare and reasonable.  Hence we do not find any legal infirmity warranting our interference in the order of the lower forum in OP 98/04 dated 16/08/2012.  Hence the appeal no.289/2013 is dismissed upholding the order of lower forum without cost.

          15.    In appeal 148/13 filed by the dealer seeking him to exhonourate from the liability of compliance of the order is also not acceptable to us.  The dealer was the immediate principle to the complainant who had direct privity only with the dealer.  It is true to say that the dealer should not be penalized for manufacture defect.  But the relation between the manufacturer and dealer is purely a matter between them and they should resolve the issue themselves as per their working arrangement.  Hence we do not find any merit in this appeal warranting our interference and therefore A.148/13 is also dismissed uphelding the impugned order dated 16.8.2012 in CC No.98/2004 without cost.

          16.    The complaint also preferred an appeal no.287/13 against the order of the lower forum in OP.98/2004.  On perusal of the appeal memorandum and based on the arguments of the learned counsel it appears their grievance on non granting of interest for the value of the car as the car was lying off the road in the workshop of the opposite party for the last one decade without any utility and at the cost of payment interest to the bank.  It is appealing and convincing to us.  A person who purchase a car is with bank loan is certainly expecting a reasonable return in the regular use of the car for their day to day conveyance.  In this case there is no dispute that the complainant has availed bank loan.  It is also admitted that the car is lying in the workshop of the 3^rd opposite party from 7.1.2004.  The complaint is denied the utility of the car on the one hand he is liable to pay interest and principle to the bank regularly till the loan is closed.  So it is reasonable to grant a reasonable rate of interest to cover both the eventualities.  Hence we find that the lower forum ought to have allowed interest in addition to the value of the car and meager compensation granted as per their order dated 16.08.2012.  We find, it is reasonable to grant 9% interest from the date of complaint (26.02.2004) on the value of the car amounting to Rs.3,53,780/- till the realization; in addition to the compensation of Rs.25,000/- and cost of Rs.5,000/- granted as per the impugned order of the lower forum.  Hence we modify the order of the lower forum directing the opposite parties to pay interest.           Appeal is allowed and modifying the order of the lower forum as above.

          In the result we dismiss the appeals Nos.148/13 and A 289/13 filed by the opposite parties I, II and III without cost.  Appeal No.287/13 filed by the complainant is partly allowed modifying the order of lower forum.  Opposite parties shall jointly and severally pay Rs.3,53,780/- with 9% interest from the date of complaint (26/02/2004) along with Rs.25,000/- as compensation and Rs.5,000/- as cost.  Time for compliance is two months from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order.

 

V.V. JOSE          : MEMBER

 

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

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KERALA STATE CONSUMER

 DISPUTES REDRESSAL COMMISSION

SISUVIHAR LANE, VAZHUTHACADU,

 THIRUVANANTHAPURAM

 

APPEAL NOS.148/13, 287/13 & A 289/13

COMMON JUDGMENT DATED:30/06/2016

 

 

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