JUDGEMENT
Complainant by filing this complaint has submitted thatfor her self-employment and earning her livelihood and to maintain her family after getting necessary formalities from RTA in respect of Route 80A & 80B. Complainant started plying a bus by paying Rs. 13,73,945/- out of which Bank loan was Rs. 11.67 lakhs and the bus started plying on and from 26.09.2011 right from 23rd day of the plying of the bus on and from 19.10.2011 problems occurred in running the bus and time to time it was capable to run the route roadable and just after purchase it was repaired by the authorized service center and in fact such a bus sophisticated technology cannot be properly repaired other than the authorized service center and in fact the new bus is repaired again and again by the authorized service center for facing different sorts of problems and recurrence of problem became an intermittent one and for which again and again complainant is compelled to go to the service center for repair and repairing of the newly purchased bus is an regular features and from October 2011 to October 2012 there has been 24 occasions of the repairing of the newly purchased bus and practically it was kept more than 60 days for repairing at service center as per job card and for many days, the bus could not be plied for its problem and in various occasions the bus remained idle for repairing for which complainant suffered income and failed to pay bank EMIs.
In this regard tireless effort to get a reasonable solution of the problem is found fertile though the matter was reported to the ops alleging the manufacturing defects. But they did not take any step for which ultimately complainant was compelled to lodge a complaint before the Directorate of CA & FBP, Govt. of West Bengal and in the said mediation meeting op’s representative assured for redressal but ultimately they did not take any step.
Thereafter complainant sent notices to the TATA Motors, both were received by the op but nothing has been done positively to remove all sorts of defects and the Lexus Motors also the dealer and seller of the vehicle is bound to take initiative to redress the grievance of the complainant and in the above circumstances complainant has prayed for replacement of the defective bus or refund her money and compensation and cost etc.
On the contrary op nos. 1 to 5 authorities of Lexus Motors by filing written statement submitted that practically up to 18.10.2010 the said bus plied more than 49200 kms and moreover the warranty was given by the manufacturer Tata Motors and same was on the warranty norm and therefore the present complaint against op nos. 1 to 5 is not maintainable and sustainable in the eye of law. It is further submitted that some manner repairing adjustment and service center was done in the vehicle as and when reported to the workshop of the answering op and after repairing and removing the said problem the vehicle was sent to the complainant up to her utmost satisfaction on all occasion and from the job card it would be found that every repairing work and other services were done by the service center at a free of cost as per warranty norms.
Moreover the bus was used for commercial purpose and some problems lying for driving by the single driver but this special vehicle is highly modern technology oriented. Further it is alleged that payment of EMI purchased of tyre, battery etc and payment of tax etc for running the bus is obvious and periodical expenditure which cannot be avoided by no one and not even by the present complainant as transport business man. So, the allegation against the dealer is completely baseless and the dealer and the service center always gave proper service and the TATA Motors already reported to the complainant if there is any grievance with her said vehicle the same may kindly be brought to M/s Auto Tech Services Ltd., the op no.5 at any pre appointed date and time when Mr. Amit Nandy and his team (Tata Motors Engineers) will ensure through checkup the vehicle of the complainant. So, there is no question of any grievance on the part of the complainant and all allegations are baseless and for which the complaint should be dismissed.
On the other hand TATA Motors by filing written statement submitted that this complaint is not maintainable in view of the fact that the present business is for commercial purpose and for the purpose of carrying on activity of profit and so the complainant is not a consumer as per provision of 2 (1) (d) of the C.P. Act 1986. Because the complainant has engaged driver, khalasi, cleaner as mentioned in para – 4 for the purpose of running the said business and further submitted that complainant purchased the bus from the op on or around 30.06.2011 and it is a new vehicle which required mandatory servicing requirement of specific content that is on or after it recommended intervals as mentioned in the operator’s service book given at the time of sale. But complainant failed and neglected to follow up the guidelines given in the operator’s service book as recommended for smooth and better performance of the vehicle in question at optimum cost viz. correct operating procedures – do’s and don’ts for maintenance and performance of the vehicle and as per report it is found that on 24.10.2011 the said bus covered the distance of 5570 Kms. when the bus was brought to the service center to the op no.1 when crown wheel and tail pinion backlash adjusted under warranty, misc. activity carried out under warranty, clutch pedal adjusted and crown wheel and tail pinion backlash adjusted under warranty that means free of cost.
Thereafter on 11.01.2012 after covering a distance of 15,068 Kms the vehicle was brought into the service center of the op no.1 Lexus Motors Ltd. when crown wheel and tail pinion backlash was adjusted under warranty and clutch pedal was adjusted and crown wheel and tail pinion backlash were adjusted under warranty and thereafter on 01.03.2012 after covering a distance of 20325 kms the vehicle was brought to the service center of the op no.1 when music activity was carried out under warranty.
Thereafter on 28.03.2012 after covering a distance of 16061 kms the vehicle was brought to the service center of op no.1 when nipple greasing, clutch system bleeding, brake system bleeding, power steering system bleeding, water pump and clutch pedal adjusted under AMC-TM and thereafter on 02.06.2012 after covering a distance of 27052 kms the vehicle was brought to the service center of op no.1 when misc. activity carried out under warranty and thereafter on 20.06.2012 the vehicle was run 27350 kms and it was brought to the service center of op no.1 when misc. activity were carried out, injector set change/assemble under warranty when on site repair was carried out.
Thereafter on 20.07.2012 after covering a distance of 38200 kms the vehicle was brought to the service center of op no.1 when elementary air cleaner was replaced, elementary air cleaner safety was removed, fuel filter BS IV spin on cartridge was removed, fuel strainer was removed, grease nipple was carried out under AMC-TM and in such a manner the second free service was given on 11.08.2012 and after that on 14.09.2012 and it was placed and everything was properly inspected and necessary replacement and repairing were made at the same time on 22.09.2012 it was again placed before service center as per norms and everything was properly checked-up and found correct and necessary servicing was made in fuel strainer cleaning, removal and fitment of water separator, repairing and servicing of fuel line, cleaning of air filter, accelerating pedal setting, clutch setting under AMC-TM and after that on 25.09.2012 and 29.09.2012 it was place before the service center when replacement and removal of front engine mounting arms were removed, welding steering GB bracket and removal etc. was done and time to time up to 14.06.2014 in the service center vehicle was placed and necessary works were done as per guidelines of the warranty card.
Further as per recommended service schedule, given in the operator’s service book, the owner of the vehicle is advised to follow certain guidelines for smooth and better performance of the vehicle. But in this case there were maintenance faults and operational faults noticed by the oops during free servicing as well as on paid services when the complainant was advised to adhere to the instructions given in the owner’s serviced book and manual for smooth and better performance of the vehicle. It is submitted that as per clause 1 of the warranty , the warranty shall be limited to 36 months from the date of sale of the vehicle by their workers or their regional sales officers or their sales establishment or 3,00,000 kms whichever is earlier subject to fulfillment of other terms and conditions of the warranty.
Lastly it is submitted that purchase of a bus by the complainant is a well-established product in the market and over a period of years, the consumers are using the product and the complainant had taken delivery of the vehicle and after being satisfied with the condition of the vehicle and its performance. It is submitted that the said vehicle was delivered after carrying out of pre-delivery inspection by the dealer and in this regard it is pertinent to state that all cars and vehicles manufactured by this op are marketed only after the prototype of the vehicle are being approved by the automotive Research Association of India (ARAI) and all the vehicle manufactured in the plant of this op are put through stringent control systems, quality checks and test drives by the Quality Assurance Department before being cleared for dispatch to the market and in this case there is no such defect in the said vehicle.
Further it is submitted that the vehicle is checked at the work shop by the quality inspector and by diagnostic expert cum trainer during pre and post repairs to ensure quality workmanship. So the op submitted that the allegation of the complainant manufacturing problems of the vehicle in this case which is completely false and fabricated.
Lastly it is submitted that the vehicle was purchased on 30.06.2011 from the op and up to 14.06.2014 the said vehicle covered 110266 Kms. and it manifests that the vehicle in question within a period of 36 months, had covered 3063 Kms. per month and the said fact proves that the subject vehicle is in absolute roadworthy conditionand that the jobs carried out on the vehicle in question are minor and running repairs required to be carried out due to regular, continuous and faulty usage of the said vehicle. But the alleged grievances reported by the complainant under the warranty was completely done by the ops as per satisfaction of the complainant.
Moreover op no.2 is on principal to principal basis policy not agent, so in all respect op no.2 is responsible if there is any problem which cannot be solved by the op no.2. Moreover complainant was asked to place the said vehicle to the op’s authority to check up the vehicle so that there is grievance of the complainant may be solved. But peculiar factor is that complainant did not report against that letter dated 19.07.2013 and in the above circumstances, the complaint should be dismissed.
Decision with reasons
On in depth study of the complaint including written version and also the total service done by the op it is clear that on all occasion as and when complainant went to the ops for any service or for any that has been done properly by the ops and invariably without anycost and various job cards also support that all repairs were carried out free of cost and bus has been plied by the complainant and it already crossed around more than 110266 Kms. as on 14.06.2014.
It is undisputed fact that the bus is still being plied by the complainant, though there is grievance of the complainant that even now some repairing is required and no doubt the complainant purchased this bus on 30.06.2011and she plied the said bus up to 14.06.2014 that means up to 14.06.2014 she had no problem of her vehicle and she has received warranty card and service book, manual and she got free service for 36 months warranty period. But all on a sudden just after completion of 36 months, complainant wrote a letter that the bus has manufacturing defect. Apparently at this stage manufacturing defect is not proved. But truth is that op Lexus Motors submitted in the written statement that they submitted such specification prior to selling with warranty and there was no defect and anyhow op TATA Motors filed those documents to prove that the vehicle does not bear any manufacturing defect. Anyhow after studying the entire materials we are confirmed that the present bus is with a high sophisticated technology system.
So, invariably the driver must have to know all the systems properly. But we find that after purchase, complainant has failed to prove that the driver was trained by the TATA Motors and complainant has failed to prove that complainant’sdriver is well about system and service at the time of purchase. But truth is that within 36 months warranty period, complainant 30 times got free service, replacement of certain articles and all other services. But considering the said work done by the service center it is clear that no major or technical problem were found for which the bus was placed before the service center and it is found that as per job necessary replacement is made which is required for replacement and that is mandatory as already made for smooth running of the vehicle.
After thorough considering of the entire materials we are convinced to hold that no doubt bus is plied for commercial purpose for carrying such business and transport by the complainant. Fact remains the transport business men are not very much interested to follow the guidelines given in the operator’s book etc. But they are very much interested to ply the bus on all days to earn money but not to maintain clutch pedal adjusted and maintenance as per guidelines of the warrantyetc. but they are very much interested to ply the bus on all daysfor profit and any maintenance of the bus is not the headache of the owner which is no doubt a bad outlook of the transport business men and in most of the cases it is found that just on the last month of expiry of the warranty, such a bus owners or car owners are appearing before this Forum with allegations that there is manufacturing defect.
Anyhow after giving of thoughtfulconsideration in respect of the claim of the complainant we find that there is no such certificate that the said bus had no manufacturing defect and it is road able and there is no problem or mechanical defect.
But op nos. 3 & 4 the TATA Motors Authority have submitted in their written version that they are willing to retain the bus for necessary repairing or replacement shall be made by them for road able. So, considering that fact we are convinced that necessary order may be passed by directing the op particularly op nos. 3 & 4 the TATA Motors Authority to check up the bus properly by expert engineer of op no.3 and to issue a certificate that there is no manufacturing defect in respect of the bus and if it is needed that certain changes are required that shall be made by the op at their own cost and to handover the bus with such certificate that there is no problem at that moment or manufacturing defect in the bus and it must be done within one month from the date of this order and that compliance report shall be made by the ops before this Forum on completion of one month and if it is not complied in that case all the ops shall be penalized for non-compliance of the Forum’s order and in that case ops jointly and severally shall have to pay a sum of Rs. 50,000/- as penal damages for violating the Forum’s order and it shall be deposited to this Forum by the op jointly and severally.
It is to be mentioned in this regard that TATA Motors as well as other ops are responsible because TATA Motors and Lexus Motors are run by principal to principal basis, so due to their performance they are responsible in all respect. So they must comply the order of this Forum.
In the result final order is passed by disposing of the complaint in favour of the complainant with such findings and order.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the ops with a cost of Rs. 5,000/-.
Ops are jointly and severally are hereby directed that TATA Motors Authority shall have to check-up the bus by the 3 experts of Automobile Engineers and to make all such repairing or replacement which are required at this stage and at the completion of work shall handover to the complainant with a certificate to that effect that the said bus has no manufacturing defect a point of time or at present and this order shall be complied by the op within one month from the date of this order and complainant shall have to deposit the said bus to the seller and ops’ service center that is op no.5 and all the ops jointly and severally shall have to take such steps and make all such arrangement to comply this order of this Forum failing which further penalty shall be imposed against them for violation of the Forum’s order and order must be carried out by all the ops jointly and severally very strictly otherwise fines and penalty should be imposed at high rate.
