BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Joginder Pal Bhardwaj aged about 57 Years son of Sh. Jagan Nath Bhardwaj resident of House No. 176 A, Railway Colony, Ambala Cantt.

……. Complainant

                                                Versus

1. Metro Motors, No. 106, Railway Road, Ambala Cantt. 133001 through its Manager/ Chief Officer.
2. Tata Motors Limited, Passenger Vehicle Business Unit, Godrej Eternia, Plot No. 70, 4th Floor, Industrial Area, Phase-I, Chandigarh - 160002 through the Regional Customer Care Manager NORTH Region.

….….  Opposite Parties

Before:        Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:-     Mrs. Suksham Aggarwal, Advocate, counsel for the complainant.                                                                                                                    Shri S.R Bansal, Advocate, counsel for OP No.1.                                                                                                                                                 Shri Shekhar Bansal, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To get the car in question thoroughly inspected and remove any or all the faults persisting in the car free of any charge and issue him an undertaking in this regard;
2. To replace the defective parts in the car for which an exorbitant amount has already been charged from the Complainant;
3. To pay a sum of Rs.100,000/- towards the mental agony suffered by the complainant and;
4. To pay a sum of Rs.35,000/- towards the cost of  litigation;
   382.  

Grant any other directions which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant had purchased a second hand TATA SAFARI-EX DICOR car 2012 Model having Registration No. HR 01 W 0015 in the month of September, 2019. At the time of purchase of the car, the complainant visited the OP No.1 and got the car thoroughly inspected and checked to see if the same is in good condition or it is fit for purchase. The officials of OP No.1, after getting the car thoroughly inspected the car and told the complainant that it is in perfect condition and the same only required a comprehensive service for smooth running. Believing the statement of OP No.1, the complainant purchased the car and got the same serviced from the OP No.1 and paid Rs. 21,362/- on 13.09.2019. The invoice for the said car was issued in the name of first owner of car namely Mr. Resham Singh as the car was not yet transferred in the name of complainant, but the complainant made the payment for comprehensive service of car. Just after few days of getting the car serviced and its purchase, the car again started creating problem and the complainant thus took the car to OP No.1. The Service Manager told that the car still has issue with the clutch plates and the same was overlooked by them while servicing the car and said that the issue will be completely resolved upon changing the clutch plates of car, which will cost Rs. 9910/-. The complainant paid Rs.9910/- as demanded by the OP No.1 and requested to do the needful so that he can run the car smoothly. However, the problem did not get resolved and the car had to be taken 4 times within a period of 2 months for getting the faults removed from the OPs. After the change of clutch plates of the car by OPs, the car ran smoothly only for a few kilometers and it again started giving problems. The wipers of the car did not work, the suspension was very poor and there were several other problems persisting in the car, inspite of the fact that OPs told him that all the problems have been resolved and the car will run smoothly. The complainant never enjoyed a smooth drive in his car and kept paying money to OPs, thinking that the defects in car would be removed completely, but to no avail. On 11.11.2020, the complainant was travelling to Chandigarh along with his family in the said car for medical test of his son who is supposed to go abroad for his higher studies. While the complainant and his family were on their way to Chandigarh, they felt that the car was showing no heat indication and there was spoiling heat smell. The car started erupting heat and smoke. The complainant immediately parked the car on roadside, opened the bonnet and was shocked to see that liquid in the radiator pipe was leaking and the car was about to catch fire. From the site only, the complainant called the OP No.1 and informed that about the incident. The OPs guided him to start the car after half an hour and bring it to the service station for checking. The complainant had to reach Chandigarh for some urgent work and thus he took the car to a local mechanic, who fixed the problem temporarily and charged Rs.1,000/- from him. The complainant and his family had a threatening experience.  The complainant took the car again to the OP No.1 on 12.11.2020 and narrated the whole incident to the officers and officials present at the Service center. But the OP No.1 took the matter casually and had shown no concern or sympathy and told the complainant to leave the car and he will be informed about the problem in the car after thorough inspection of the car. The complainant had no other option than to leave the car with the OPs and thus he left the car on 12.11.2020. After that, the complainant kept visiting the workshop of OPs every 3^rd/4^th day to get the status and estimated expenditure of the car, but he was turned back on the pretext that the inspection is still going on. Consent of the complainant was not taken before repairing the car and on 30.11.2020, he received a call from the representative of the OPs that the car has been completely repaired and is ready to be taken. The complainant was given a bill of Rs. 69,262/- against the repairs and service. The complainant met the Chief Executive Officer of the OPs and told that he is being fooled by them as he had already paid various amounts to them and thus if the car still has the problem, he should not be charged more. Moreover, the complainant was not even asked before the repairs were done and bill raised by the OPs was totally ingenuine. But the CEO of the OPs refused to entertain the complainant and as such, he was compelled to make full payment of the bill of Rs. 69,262/- to the OP No.1. Even after making such hefty payment to the OP No.1, the car still has problems and is not running smoothly.  The complainant again had to take the car to OP No.1 on 22.02.2021 as there was some leakage in the radiator pipe of the car but nothing was done by it.  The OPs again showed a casual attitude towards the complainant and told him to leave the car by saying that the repair would take time. The complainant went to the workshop of the OPs on 23.02.2021, to get the car but its officials again started demanding Rs.2500/- for the repair. The complainant got frustrated and complained to the CEO of the OPs, who allowed to take the car without payment of further charges. When the complainant asked for solution of the problem of coolant change in car then the technicians told him that they have filled the coolant box of car with water as a temporary measure and he should drive the car smoothly as during the said period, leakage can be checked and thereafter coolant will be refilled. The complainant had no option than to accept the version of the OPs and he took the car from service station. Complainant visited the OP No.1 after 15 days but it was told to him to drive the car for another 15 days for checking purpose. Since then, the complainant had been visiting the OP No.1 but its officials were putting of the matter on one pretext or the other.  The complainant is still facing multiple problems in the car. The complainant has been badly harassed by the OPs, who are just greedy for money and are the poorest service providers. The complainant had also wrote email to the OP No.1 and 2 for resolving his genuine problem but to no avail. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability etc. On merits, it has been stated that the complainant had visited the workshop on 09.04.2021 at Kilometers 90381 for normal job. The vehicle was checked and its rear shocker was found dead and was got replaced on payment basis of Rs.8,253/- including GST. Thereafter the vehicle was delivered to entire satisfaction of the complainant. Since the vehicle was out of warranty, everything was done on payment basis including the replacement of rear shocker. Lastly, the vehicle was attended on 23.11.2020, when it covered the mileage of 105330 Km for normal job and thereafter it was not received in workshop of OP No.1 for any kind of repairs. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with cost.
4.           Upon notice, OP No.2 appeared and filed written version wherein it raised preliminary objections to the effect that the complainant is not a consumer; the complainant has not purchased the vehicle in question from OP No.2 rather he purchased it from Mr. Resham Singh and the complainant is the second owner;   the present complaint is barred by limitation and is liable to be dismissed etc. On merits, it has been stated that the vehicle in question was purchased on 25.06.2012 and the original warranty offered by OP No.2 was for three years and there was no extended warranty. The vehicle in question has covered 1,05,330 Kms. as on 23.11.2020 which ipso facto make it absolutely clear that vehicle does not suffer from any defect as alleged by the complainant. Had there been any defect, the vehicle could not have covered such a mileage. The relationship between the complainant and OP No.2 are governed by the warranty terms as detailed in Owners Service Manual and as per clause 3 of the Terms & Conditions of the Warranty which is reproduced hereinbelow *...Our obligation under this warranty shall be limited to repairing or replacing, free of charge, such parts of the vehicle or engine as the case may be, which, in our opinion, are defective, on the vehicle being brought to any TATA Motors authorized service center within the warranty period......"  In the present case, the complainant has breached the terms of warranty by getting the vehicle repaired from a local mechanic. OP No.2 has been performing its part of contractual obligations by carrying out the necessary repairs/replacement of parts as such, the complaint is without any cause of action and premature. The case of OP No.2 is supported by the law laid down by the Hon'ble Supreme Court  in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra (2006) 4 SCC 644. The complainant has violated clause No. 5 of the terms and conditions of Owner's manual being negligent towards maintenance and got the vehicle repaired from a local mechanic. The  complainant himself has been negligent in handling the vehicle as such, he is not at all entitled to any compensation as claimed. The complainant has further miserably failed to prove that the vehicle in question is suffering from any manufacturing defect. The relationship between the OP No.2 and its Dealers is on "principal to principal basis. OP No.2 cannot be held liable for any lapse on the part of the complainant. As per information received, after replacement of the clutch plate, the same problem was never reported again. Furthermore, had there been any problem of poor suspension and other alleged problems within few Kilometers, it would have known to the complainant even at the time of replacement of clutch plate.. As per the warranty clause, consumable parts are chargeable and do not cover warranty or extended warranty. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with cost.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A, alongwith documents as Annexure C-1 to C-13 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered evidence of Lakhmir Bhardwaj, WM Service, Metro Motors, Ambala Cantt as Annexure OP-1/A alongwith document Annexure OP-1/1 and closed the evidence on behalf of OP No.1. Learned counsel for OP No.2 tendered evidence of Sharmendra Chaudhry, Deputy General Manager- Legal, Tata Motors Ltd., having its Regional Office at 2^nd Floor, Salcon Platina, Opposite Bristol Hotel, M.G.Road, Gurugram, Haryana as Annexure OP-2/A and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by giving wrong opinion to the effect that the vehicle in question was fit for purchase whereas, on the other hand, it was suffering from various defects, which could not be removed by the OPs despite receiving huge amount towards repair and replacement of defective parts, the OPs have indulged into unfair trade practice and are also deficient in providing service.
8.           Learned counsel for OP No.1 while reiterating the objections raised in the written version submitted that the complainant has failed to prove that any opinion was taken by him from OP No.1 before purchasing the vehicle in question. He further submitted that the vehicle in question was out of warranty and it was an accidental vehicle, which is evident from its history enclosed alongwith the reply and as such, for any defect rectification or replacement of defective parts, the complainant was liable to pay for the same, as it was not covered under the warranty period. In support of his contention, the learned counsel for the OP No.1 has placed reliance on the judgment of the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai, in the case of Messrs S.R. Gadre and Co. & Anr. Vs. Rameshchandraji Kanhailalji Shraogi & Others CPJ III (1999) CPJ 566 and also on the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Ors. CPC 2011 (2) 126-127 NC.  
9.           Learned counsel for OP No.2 while reiterating the objections raised in the written version submitted that the original owner Mr. Resham Singh had plied the said vehicle for about 1,00,000 Kms. and there was no major repair reported in the vehicle. Had there been any defect, the vehicle could not have covered the mileage of more than 1,00,000 KM.  He further submitted that the relationship between the complainant and OP No.2 are governed by the warranty terms as detailed in Owners Service Manual. It was an accidental vehicle, which is evident from its history and as such, for any defect rectification or replacement of defective parts, the complainant was liable to pay for the same, as it was not covered under the warranty period.
10.           It may be stated here that from the perusal of record of this case, we are of the considered opinion that this complaint deserves to be dismissed on following grounds:-
    1.  Firstly, the complainant has failed to prove his version that before purchasing the vehicle in question, he  availed any services to apprise him about its condition or that it was  purchase worthy or not or that it was suffering from any defects.
    2. Secondly, the job card/tax invoice dated 13.09.2019, Annexure C-7 placed on record clearly reveals  that the vehicle in question was taken to the workshop by the previous owner i.e. Resham Singh for  repair/replacement of different parts as such, this job card is no help to the complainant.
    3. Thirdly, the remaining job cards placed on record by the complainant reveal that the vehicle in question was taken to the workshop for repairs on two occasions i.e. on 24.09.2019 for clutch plates and secondly  on 30.11.2020 when hose pipe of the radiator was found leaked which resulted into further damage to other parts of the vehicle and replacement of defective parts     ;
    4. Fourthly, because the vehicle in question was an old one of 2012 model and out of warranty therefore the complainant was liable to pay the repair charges and also for replacement of defective parts;
    5. Lastly, it is also evident from the history of the vehicle in question, Annexure OP-1/1 which stood unchallenged by the complainant that the vehicle in question met with an accident twice i.e. on 25.10.2013 and 01.12.2015  whereafter major repairs were carried out in it. 

11.           Under above circumstances, when it is found that the vehicle in question was not covered under the warranty period; it  was an accidental vehicle and at the same time, it has also not been proved on record that any opinion was taken by the complainant before purchase of the same from the OPs, qua the  condition of the vehicle in question and if under those circumstances, OP No.1 charged against the defect rectification or replacement of defective parties from the complainant, he is not  entitled to get any relief  of refund of the said amount. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 01.12.2023