BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.39/2012

Dated this the 13^th day of July 2016

(Date of Institution: 08.11.2012)

G. Selvaraju, son of R. Gopalsamy,                 

No.31, 5^th Cross Street, Kurinji Nagar Extention,

Lawspect, Puducherry – 605 008.

….     Complainant

vs

1. The Authorised Signatory                    

    "Manakular Motors" Preshitha Complex

    Villianur Road, Reddiyarpalayam        

    Pondicherry – 605 010.

2. The Chief Executive,                          

    TATA MOTORs, Marketing and Customer

    Support Car business unit, One Forbes, 5^th

    Floor, Dr. V.B. Gandhi Marg, Fort,           

    Mumbai – 400 023.            

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru N. Baptiste Augustin, Advocate

FOR THE OPPOSITE PARTIES: OP1 – Ex Parte.

                                                         OP2 – M/s Law Solvers, Advocates.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for ;

1. Directing the Opposite Parties to pay the complainant a sum of Rs.22,270/- which they have collected from the complainant on 23.04.2012 during the period of warranty.
2. Directing the Opposite Parties to replace the Oil Pump due to heavy smoke coming out of it at the time of driving; reboring or replacement of Engine; rectification of Gear Box and Clutch problems; replacement of Turbo Engine; replacement of Shock Observer;
3. To pay a sum of Rs.1,00,000/- as compensation for his agonies
4. to pay the cost towards this complaint.

2.  The case of the complainant is as follows:

          The complainant purchased one Indica Vista Car on 29/07/2010 bearing chassis No. MAT608531APF50838 and Engine No.4751DT14FZYP54004 through Sundaram Finance loan and the car is registered before the Puducherrry RTO and the number of the Registration Number of the Car is PY 01 BD 0858. The complainant states that the car is having two years warranty and he further states that, the transaction is recorded by opposite party No.1 as CRN: CR01-10-110030386751, Invoice No. ManakM-1011-00396.  The Opposite party No.1 is the dealer and service person of TATA Indica cars and the          Opposite party No.2 is the manufacturer of the TATA Indica Cars. On 13.08.2010, the car break down with a big sound. Then, the complainant immediately called the Opposite party No.1 and the people from Opposite party No.1 also came and did some repair works.  During this break down, the car run only 450 Kilometers from the date of purchase.  That the complainant further states that, while asking about the reasons for such break down, the people from opposite party No.1 did not answer to the complainant  properly.   On 01.09.2010, at 1093 Kilo meters run of the car, he gave the car for regular service to opposite party No.1 and reported to them that, there are so many problems in the car like low Fuel Economy, High Noise from the engine, dark smoke from the silencer etc., and also reported the previous break down.   But Opposite party No.1 have not attended any of the problems and they have delivered the car without rectifying any of the problems in it. On 24.01.2011, at 4815 kilo meters run of the car, he gave the second regular service to Opposite party No 1 and reported to them that, the same old problems of low fuel economy, i.e., 10 kms per liter, dark smoke from the silencer and high noise from the engine etc., and also remained about the previous break down. That the complainant further states that,  on the basis of the warranty, the Opposite party No.1 changed some two parts of the vehicle and handed over it to the complainant.  On 23.07.2011,  at 10573 kilo meters run of the car, he gave the car for third regular service to opposite party No.1 and reported to them that the same old problems are still existing. But in that service also they have not rectified anything. The complainant further states that, the car company namely J.K. Motors has conducted an authorized free camp for Indica Cars. In that, during 14200 kms, complainant shown his vehicle and there, he reported all the problems and they have examined his car and they advised the complainant to approach the company where he purchased. That the complainant further states that, there at the free service, they did oil maintenance coolant water and they changed air filter element. On 13.02.2012, the car again closed its movements and break down at the signal near Rajiv Gandhi Statue.   Then immediately, the complainant towed the car and gave it to the Opposite party No.1 for proper repairs and there, they checked and informed to the complainant that, only the clutch plate was the problem and they also informed him that, they will do it within the warranty scheme. Accordingly, they changed something and handed over the car to the complainant. But the problems were all still at the car and hence again he made a complaint to the Opposite party No.1 and there, they assured to the complainant that, the next service is the final service and at that service they would rectify all the problems. Therefore, accordingly, he gave the car for service on 23.04.2012. After a full day has gone, the people from opposite party No.1 called the complainant and informed him that, there is more oil in the car therefore.   It requires more money to repair and they have also added that, the complainant should bear the whole amount. They have also added that, the Turbo Pumps are all damaged and it requires lakhs and lakhs of rupees to repair and to replace them. But, the complainant told them that, the car is within the warranty period, therefore, all the things to be done free of cost. But they refused to replace the necessary parts, under the warranty coverage and they have also even did not hear the words of the complainant. The car is still suffering from the same problems that the complainant states that, he came to know that, instead of replacing the damaged parts, some persons may reconditioned the damaged parts and make the car to work properly for a short period.     The complainant further stated that, for the last service, the opposite party No.1 has charged Rs.22, 270/-.   But the complainant paid the said amount, with the endorsement "without prejudice, to his claim before the Consumer court".   The complainant further stated that the  was made with some manufacturing defect and both the opposite parties, as the distributor and manufacturer respectively, are only responsible for that and both the them are liable and accountable to the complainant. The Opposite party No.1 has not replaced the following items:

1. Replacement of Oil Pump is necessary due heavy smoke coming out of it at the time of driving.
2. The performance of the Engine is not satisfactory hence reboring or replacement of Engine is necessary.
3. Gear Box and Clutch problems.
4. Replacement of Turbo Engine.
5. Replacement of shock observer.  

Due to the activities of the opposite parties, he sustained heavy mental and physical agony and also financial loss. The opposite party No.1 did not attended the car properly to rectify the problems which amounts to unlawful trade practice and deficiency of service as per law. The complainant further states that, it is the bound duty to the opposite party No.1, to do the necessary services to the complainant's car and replacements for the damaged parts during the warranty coverage period, but the opposite party No.1, failed to do so. Further, both the opposite parties are accountable and responsible for the manufacturing defects of the complainant's car.  The complainant sent a legal notice to the opposite parties on 31.05.2012, the said notice was received by the opposite parties on 11.06.2012 and for that, the opposite party No.2, sent a reply dated 19.06.2012, to the complainant's counsel and stated that, "we have called for a report. We will write to you soon on the merits of the case and in the meanwhile please bear with us. If your client's case is bonofide and justified, we assure you the same would be resolved".     But, the opposite party No.1 has neither sent reply nor taken any steps to resolve the problems. That the complainant further states that, after the said reply notice, the opposite party No.2, also did not make any steps to resolve the problems. Hence, this complaint.

          3. The first opposite party remain absent and set ex parte.

          4. The reply version filed by the second opposite party briefly discloses the following:

          The complaint is an abuse of process of law and is not maintainable as the complainant has approached this Hon'ble Forum by suppressing the material facts.

The complaint filed by the complainant does not fall within the definition of a 'consumer dispute' under the Consumer Protection Act as there is neither any manufacturing defect proved in the car in question nor any deficiency in service being established against this opposite party.  As per the recommended service schedule, given in the owner's manual and service book, which amounts to agreed terms of contract, the owner of the car is advised to follow certain guidelines for smooth and maximum performance of the car.   In this case, there were instances of maintenance faults and operational faults noticed by the opposite parties during free servicing as well as on paid services when the complainant was advised to follow the instruction given in the owner's service book and manual for smooth and maximum performance of the car. In this case, the opposite parties rely on the clause 5 of the terms & conditions of warranty, which states as – '' The warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments, our authorized dealers or service centers or service points in any way, so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the vehicle is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified  by us or such services prescribed in our Owner's Manual and Service Book are not carries out by the buyer through our sales or service establishments, our authorised dealers or service centers or service points''. The opposite parties state that in view of improper maintenance and servicing of the car, the warranty ceases to exist.   The complainant has filed this baseless complaint alleging manufacturing problems in the car without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject car suffers from the problems as alleged, or to establish any manufacturing defect in the car in question. The opposite parties submit that the allegations of the complainant in respect of manufacturing defects in the car in the absence of an expert report, miserably fails and the instant complaint deserves to be dismissed.  The complainant has purchased the car on 29.07.2010 from the opposite party dealer and he said car in question till 05.05.2012 had covered around 19238 kms. and it manifests that the car in question within a period of 9 months, had covered 2138 kms. per month. The said fact proves that the subject car is in absolute roadworthy condition and that the jobs carried out on the car in question are minor and running repairs, which was required to be carried out due to extensive and faulty usage of the said car.  He is bound by its terms & conditions and the onus would be on him to prove the terms & the circumstances, in which he has signed the contract. Clause 9 of the warranty, which states as –"the buyer shall have no their rights excepts those set out above and have particular, no right to repudiate the sale, or any agreement or to claim any reduction on the purchase price of the car or to demand any damages or compensation for losses, incidental or indirect, or inconvenience or consequential damages, loss of car, or loss of time, or otherwise, incurred or accrued".   Hence, the complainant is debarred from claiming any compensation or damages from the opposite parties. In the present case, it is crystal clear that there has been no manufacturing defect in the goods purchased by the complainant and or deficiency in service on the part of the answering opposite parties. The opposite party has been prompt and swift to attend to the alleged grievances reported by the complainant free of cost as well as on paid basis, as and when reported this opposite party states that the observations recorded by the service advisor on the job card and steps taken for resolution of the complaints, would clearly establish that whatever complaints raised by the complainant, were running complaints and recommended services, which required to be attended for extensive usage and improper maintenance of the vehicle and were rectified satisfactorily under free of costs hence, there cannot be any question of manufacturing defect meriting replacement of the vehicle.   It is pertinent to state that this opposite party sells the cars and vehicle to the dealers; in this case to the opposite party No. 1 on a principal to principal basis for onwards sales to the end of the customers and this opposite party cannot be held responsible for their act or omission, if any from the evidence/averments adduced by the complainant that it does not relate to any involvement of this opposite party and the complainant is trying to espouse his claim form the answering opposite party as his claim form 1^st opposite party has been rejected.  Moreover, the complainant has not pleaded any statement/ averment against this opposite party, thus, there is neither any prima facie case being made out against this opposite party nor there is any cause of action arose in favour of the complainant, hence this opposite party are fit to be discharged from the instant proceeding. The complainant has not showed any dissatisfaction with the performance of the vehicle at the time of delivery. It is clearly evident from the service history that most of the services were done and parts replaced on the said vehicle free of cost and only few consumable item has been replaced on the paid service basis.   Had there been any manufacturing defects in the vehicle, the vehicle would not have covered more than 19238 kms.  in a mere span of 9 months. It is a settled law that the manufacturer is only responsible for the manufacturing defects, if any, and for rendering deficient service it is the service provider/ dealer who is responsible.  In the instant case, the problem as recorded by the complainant,  it was duly repaired and there is no problem in the utility vehicle as on today.   It is reiterated herein that the vehicle of the complainant was attended to the satisfaction of the complainant as and when it was attended under the warranty and there is no outstanding issue in respect of the said vehicle at present. The complainant is debarred as per the warranty policy to demand any damages or compensation for losses, incidental or indirect or inconvenience or consequential damages, loss of car, or loss of time, or otherwise, incurred or accrued. The legal notice sent by the complainant was duly replied by this opposite party stating that the issues of the complainant would be resolved  if the grievances are bonafide  and justified.   However, on thorough investigation, the claim of the complainant was found to be devoid of any merits and hence, no action was taken by the answering opposite party.   There is no cause for filing the captioned complaint and the complainant is trying to make false cause of action by misleading this Hon'ble Court on false averment. Hence the complaint dismissed.   

 5.      On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C17 were marked.  On the side of the opposite parties, no witness was examined and no documents were marked.

6.       Points for determination are :

1. Whether the Complainant is the consumer?
2. Whether the opposite parties attributed any deficiency in service?
3. To what relief the complainant is entitled for?

7.       Point No.1:

     The complainant purchased one Indica Vista Car on 29/07/2010 bearing chassis No. MAT608531APF50838 and Engine No.4751DT14FZYP54004 on 29.07.2010 from the first opposite party manufactured by the second opposite parte through hire purchase from Sundaram Finance vide Ex.C1 photocopy of RC Book, Ex.C2 photocopy of Insurance Certificate, Ex.C3 photocopy of  Debit Note and Ex.C4 Tax invoice.  Hence, the complainant is a consumer.

8. Point No.2:

We have perused the complaint, Exs.C1 to C17, reply version of the second opposite party and the evidence of CW1.   The complainant purchased one Indica Vista Car bearing Regn. No.PY 01 BD 0858 from the first opposite party manufactured by the second opposite party on 29.07.2010.  It is alleged that the car started giving problems on 13.08.2010 i.e. break down, however, the first opposite party did not give proper answer for such break down though they have rectified it.  When the complainant gave the vehicle on 01.09.2010 at 1093 kms. for regular service by reporting the problems such as low fuel economy, high noise from the engine, dark smoke from the silencer, the first opposite party did not attended the same and delivered the vehicle to the complainant.  On 24.01.2011 at 4815 kms. run of the car when the  complainant gave the vehicle for second regular service complaining the above problems, the first opposite party changed some two parts and handed over the vehicle to the complainant.   On 23.07.2011 at 10573 kms. run of the car, the complainant gave the car for third regular service complaining the same defects, the opposite party did not attended it and returned the vehicle.  When the complainant gave the car for Free check up  conducted by J.K. Motors, when the car run 14200 kms. they did oil maintenance coolant water and they changed air filter element.  But, on 13.2.2012, again there was a break down of the car and did not move and hence, the same was towed and given to the first opposite party for repairs.  Further on 23.04.2012 when the car was given for service, the first opposite party demanded charges for servicing the same as the Turbo pumps are damaged and also stated that there is more oil in the car.  The complainant stated that the first opposite party refused to replace the parts when the car is under warranty.   Since the alleged complaints persists in the car, the complainant issued a legal notice dated 31.05.2012 vide Ex.C14 to the opposite parties and they have also received the same vide Exs. C15 and C16.  The second opposite party alone sent reply dated 19.06.2012 vide Ex.C17 and the first opposite party did not care to send any reply and therefore, prayed for compensation. 

          9. The first opposite party remained absent and set ex parte and the second opposite party admitted in the reply version that the complainant purchased an Indica Vista car from the first opposite party on 29.07.2010 and pleaded that the complainants made by the complainant are only running complaints and they were rectified satisfactorily under free of cost and hence, there is no any question of manufacturing defect for replacement of the vehicle.  It is also alleged by the second opposite party that the said vehicle  was continuously used by the complainant and the car had run about 19238 kms.  If there is any manufacturing defects in the vehicle, the vehicle would not have covered more than 19238 kms. from 29.07.2010 to 05.05.2012. 

10.     From the above facts and circumstances, this Forum observed that the car purchased by the complainant from the first opposite party manufactured by the second opposite party had some defects, the same is narrated as below as per Exs.C5 to C12.

On perusal of the above job cards, this Forum observed that there was no manufacturing defects in the car and after carrying out necessary repairs, the said complaints were rectified by the service personnel of the first opposite party and delivered to the complainant.  Except the complaints of poor pick up and engine noise level high, no defect was repeated in the above said job cards and the defects shown in the job card does not amount to manufacturing defect.  The above said two complaints of poor pick up and engine noise cannot be termed as manufacturing defect and the same were routine repairs and it is recurring in nature in the running of the vehicle. 

11. Further, the complainant claimed refund of Rs.22,270/- which was collected by the first opposite party when the vehicle was serviced on 23.04.2012 since the vehicle was under warranty period.  It is pertinent that both the parties have pleaded about warranty clause, either the complainant or the opposite parties produced the warranty card to enable this Forum to decide the claim of refund of Rs.22,270/-.  In the present case on hand and on perusal of Exs.C5 to C12, some services were made on free of cost and some were charged for the replacement of materials which seems that the first opposite party has done services to the vehicle free of cost and only defective materials which caused during running of the vehicle were charged from the complainant which cannot be claimed by the complainant.  Hence, this Forum is not inclined to order refund of Rs.22,270/- charged by the first opposite party who is the service provider for changing the defective parts.

          12. Despite, whenever a manufacturer of the vehicle offers a brand new vehicle and the dealer sell it to the consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.  Further, in this case, the defects complained by the complainant were rectified by the first opposite party then and there.  But,  though the complainant did not establish that the alleged car has manufacturing defects, whatever defect has been observed in the vehicle for which the  complainant had to suffer the mental agony of taking the vehicle to the workshop so many times has to be attended to in a proper perspective.  Further, the interests of the consumer can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not.  It is the bounden duty of both the manufacturer and the dealer to attend to the said defect and make it a defect free vehicle.  In the present case, the complainant had met with breakdown of the vehicle on the road and also he had visited the service station for more than four times for same defects and therefore suffered mental agony which cannot be compensated in terms of money.  However, the complainant is to be compensated to the actual loss, mental agony, physical discomfort and loss of time by taking the vehicle time and again to the work shop.   Hence, this Forum found that it would be appropriate to grant compensation to the complainant on account of inconvenience and mental agony caused to the complainant for taking the vehicle on number of occasions for minor repair to the service centre / work shop.   Hence, the opposite parties 1 and 2 are jointly and severally liable to pay compensation to the complainant. 

13.     Point No.3:

          In view of the decision taken in point No. 2,  this complaint is allowed.  The opposite parties  are directed:

1. To pay a sum of Rs.20,000/- as compensation to the complainant for deficiency of service;
2. To pay a sum of Rs.5000/- as cost of the proceedings. 

Dated this the 13^th  day of July 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           21.04.2015           G. Selvaraju 

OPPOSITE PARTY'S WITNESS:         NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:        NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER