OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.29/2010
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Dr. Nidhi Saxena Bhattacharyya - Complainant
W/O- Dr.Satyajib Bhattacharyya
Tezpur University,Napaam.
Tezpur,District-Sonitpur,Assam
-vs-
1) M/S Abhishek Motors Pvt.Ltd. - Opp.parties
M.R.D.Road,Silpukhuri,
Guwahati-781003,Assam
2) Tata Motors Ltd.(Regional Office)
Godrej Building ,G.S.Road,Ulubari,
Guwahati 781087,Assam.
3) Tata Motors Ltd.
Corporate Headquarter,
(Through President of Passenger Cars)
Bombay House, Mumbai,
Maharashtra-400001.
Appearance : -
Ld. advocate Mr. Nilakanta Neog for the complainant Ld. advocate Mr. Amitabh Choudhury , Ms.Deepamoni Kalita for Opp.Party No-2 and 3.
Date of argument- 24.10.2017
Date of judgment- 04. 01.2018
JUDGMENT
This is a complaint U/S- 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Dr.Nidhi Saxena Bhattacharyya ,W/o Dr. Satyajib Bhattacharyya, Tezpur University, Napaam, Tezpur, District - Sonitpur against M/S Abhishek Motors Pvt.Ltd, Guwahati, Tata Motor Ltd.(Regional Office) G.S.Road, Guwahati, Ulubari and Tata Motor Ltd. Mumbai was admitted on 17.8.10 as a proceeding U/S 12 of Consumer Protection Act,1986 and notices were duly served upon them and Opp.Party No.2 & 3 jointly filed the written statement, but Opp.Party No.1 declined to contest the case and accordingly the case against Opp.Party No.1 is proceeding on exparte vide this forum’s order dtd. 20.10.11 . The forum also, vide order dated 20.10.11 rejected the Petition No.797 through which Opp.Party No.2 & 3 prayed for getting the disputed vehicle examined through appropriate laboratory and that order stands absolute as no appeal or revision filed against that order. The complainant filed evidence of Nidhi Saxena Bhattacharyya (the complainant herself), Satyajib Bhattacharyya, Pranjal Bora and Anup Kr.Bordoloi . All the witnesses were cross - examined by Opp.Party No.2 & 3 side . Thereafter, Opp.Party No.2 & 3 declined to give any evidence of their owing. Finally, on 6.7.17, the complainant side filed the written argument and Ld.advocate Ms.Deepamoni Kalita filed written argument for and behalf of Opp.Party No.2 & 3 on 12.5.17. Thereafter, on 30.8.17, we heard oral argument of Ld.advocate Mr.Nilakanta Neog for the complainant and of Ld.advocates Mr.Amitabh Choudhury and Ms.Deepamoni Kalita for Opp.Party No.2 & 3 and fixed the day of 14.9.17 for delivery of judgment, but due to the illness of the president of the forum, the judgment was not delivered on 14.9.17 and fixed the day of 24.10.17 for delivery of judgment, but on that day also the judgment was not delivered as the president was on earned leave ; and today, we deliver the judgment, which is as below.
2) The gist of the complainant is that as the complainant’s mother-in-law has been suffering from terminal illness, for her help and also for their use, she decided to purchase a Indica Vista Aura Quadrajet having air-conditioner from Abhishek Motors, Guwahati, Silpukhuri, and for that pursuit they contacted Mr.Sanjib Jha of Abhishek Motors Pvt.Ltd.to make the said car ready and they did test driving and found A/C was defective, and then second one was made ready and it was also found that the A/C of second one also was not as chilling as it should have been, the Deputy Manager Sales told them that A/C was fault free and believing that she, on 30.6.09, purchased that vehicle making full payment of Rs.4,69,101/- (Rupees four lakhs sixty nine thousand one hundred one)only to OppNo.1 and it was subsequently registered as AS 12 F 8695 , by D.T.O.Sonitpur. On 1.7.09, a rainy day, she along with her husband proceeded to Tezpur driving the said vehicle, the A/C was found not switched on and again on 4.7.09, while the weather was clear the A/C was again found not switched on and it was found not effective at all through the outsides temperature was not very high. Then her husband on 5.7.09, asked Abhishek Motors to replace the vehicle but Mr. Sanjib Jha of the Opp.Party No.1sent a mechanic who tried ractify the problem , but failed to do so and cooling was not improved and she did 200 k.m. drive to check up the cooling ,but found air flow became minimum and she then again informed Abhishek Motors and they advised to take the vehicle to Ghose Brothers, (Tezpur) workshop. She lodged complained with Tata Motors Ltd.through e.mail and they received her complain vide No.1-6949094890 dt.5.7.2009 which reads as
“ I purchased a vista aura quadrajet from Abhishek Motors in Guwahati on 30th June, 2009. The blower airflow in the vehicle (prepared for delivery) drastically reduced even while we were testing the ac and heater. They rectified it and the mechanic told us that we must have handled the knobs harshly because of which something came off inside.(I can tell you it is not true !) It was raining and so we could not assess the afficacy of the ac (my earlier car was a non ac one and so do not have much idea). When asked, we were assured that the ac is working fine. I asked about the cooling capacity about which they have no idea. Yesterday the sun came out and I realized what I got- a not at all effective AC in the brand new car ! My friend’s four year old Maruti Wagon-R is many time more effective. I sweated for almost half an hour with the AC on (Please note that temp.in Assam do not rise as high as in places like Delhi.) To top it, this morning the blower problem reappeared again ! I am asked by the dealer to bring the car to their work-shop which is 200 kms. From where I live. If I have to go through this I would rather have brought a second hand car ! My experience is that defects that come from the factory generally keep recurring and the anxiety of driving a problem prone car will always remain. For a woman who would be driving, it is going to be touch. The vista as a car otherwise is quite good and I feel proud as an Indian for this achievement by Tata Motors.
My request to you is to replace the vehicle (on which I no longer have confidence) with another one. I requested the dealer too for the same. It is now clear that the defects pre-existed at the time of delivery. I went for a Tata vehicle because of my strong Indian sentiments and I am sure Tata motors is going to respect that . it is also about the hard earned money of a humble university teacher.”
They also acknowledged receipt of the complaint through SMS in her husband’s mobile (9435381270). The mechanic of Ghosh Brothers Tezpur failed to rectify the problem and Mr.Jha asked her husband to take the vehicle to Adabari (Guwahati) and on 7.7.09 they alongwith one acquaintance, Mr.Pankaj Sarma brought the vehicle to Adabari and there A/C was checked by mechanic and the mechanic told them that the mud and dust was cleaned and that A/C is functioning , but her husband found that cooling was still not adequate and grill temperature did not go below 17 degrees while another vehicle, on testing, found the grill temperature went down to 6.6 degree celsius in about 5 minutes. Then the vehicle was taken to Silpukhuri workshop by Sri Hemen Sarma (Supervisor) for testing. The electrician told that the gas quantity was 510 gms against the recommended quantity of 450 gms and excess gas was taken out , but the problem got not solved, and they said that the hot air from the engine was getting mixed with the cool air. The cooling did not go down to desired level even through it was almost dusk and outside ambient temperature lowered reasonably by that time, and then they again wanted to increase the quantity of gas. But her husband found that the mechanics of the opp.parties tried enough to rectify the problem , but failed to do so and then her husband took back the vehicle to Tezpur. Failing to receive any response from Tata Motors her husband on 9.7.09 called up Mr.Pulak Goswami , Director of Abhishek Motors Pvt.Ltd. (Opp.Party No.1) and requested him for replacement of the vehicle, but the latter told her husband that replacement is not possible and they will repair the A/C and Mr. Pulak Goswami also reported her husband that after running of above 1000 k.m. since from test driving, replacement cannot be done. When she told Mr. Goswami that, when the vehicle purchased by one of their colleague , Dr.A.K.Das of Tezpur University, which did 600 k.m.run , while it was very defective and his request for changing of the car model had been honoured. Finding no alternative she gave another complaint to Tata Motors in their website vide Complaint No. 1-7010404531 dtd. 10.7.2009 in which she states, “Complaint No. 1-6949094890 chassis No. 611452BQZP21082 In continuation- 5/7/09: A dealer mechanic who happened to be at Tezpur xould not rectify. 6/7/09: Advised to go to Ghosh Bros, Tezpur, Mechanic was getting smell of coolant from underneath the dash board. Dealer asked me to bring the vehicle to their Adabari, Guwahati workshop. 7/7/09: Reached workshop driving 220 kms. They told mud had accumulalted and now it is ol.Cooling was still not adequate, so insisted for comparing the grill temperature with another vehicle-did not go below 17C while on the other went down to 6.6 C. Vehicle was taken to their Silpukhuri workshop . Electrician told that the gas quality was more,so the extra amount was taken out. Problem was not solved; they said hot air from the engine is getting mixed with cool air. The entire panel on my brand new car had been taken out. Grill temp.did not come down to desired level. Then they again wanted to increase gas quality when I told that trial and error method must stop. I took back the car to reach Tezpur at 12:00 midnight. 8/7/09: No response on my request for replacement from Tata Motors and Abhishek Motors. 9/7/09: Called Mr.P.Goswami (Director) of Abhishek Motors. He told replacement is not possible. I informed Isum Motors, Tezpur (Maruti) not only replaced the vehicle of my colleague which did 600 kms, but also had changed the car model on request. Also talked to Mr.Nath (GM,workshop) who promised to get back this evening. 13/7/09: Still waiting for the promised call from Mr.Nath ! Replacement of the carwhich was defective when delivered by assuring it is ok is the only option to undo the wrong done at the time of delivery.”
The receipt of aforesaid complaint was acknowledged through their SMS sent by her husband in his mobile No. 9435381270, but she received no response from them and then she sent a pleaders notice to Abhishek Motors Pvt.Ltd,Guwahati with a copy to Tata Motors Ltd. for replacement of the vehicle, and after receiving the pleader notice she was asked to take the vehicle to Guwahati and then her husband brought the vehicle to guwahati and the mechanic of Opp.Party No.1 checked the A/C gas and found that gas was less than recommended quantity (390 gms against 440 gms). The entire gas was then taken out and refilled, and the vehicle was checked at the advice of someone from Kolkata over phone, but problem was not solved; and then Mr.Jha and Mr.Nath of Opp.Party NO.1 requested for a few days time . Then after on 24.7.2009 Mr.Nath called her and then her husband called Mr.Nath on 4.8.09, but Mr.Nath told him that A/C is not working as expected and there will be no replacement. It is found that none of the opp.parties succeeded to repair the defect of A/C and none of the opp.parties came out to redress her grievance and thereby she suffered loss. Therefore, she is entitled to replacement of her vehicle or to get back the purchase money which is Rs.4,69,101/- alongwith expenses of taking the car to repair to the tune of Rs.10,000/-, compensation for causing mental sufferings etc. to the tune of Rs.1,00000/- and legal expenses to the tine of Rs.15,000/- in total Rs.5,94,101 /- with interest @ 18% per annum.
3) The pleading of the Opp.Party No.2 & 3 , Tata Motors Ltd.is that the cars and vehicles manufacturing by them passed through stringent quality check and road trials before the actual commercial production starts and vehicles are marked only after being approved by Automotive Research Association of India and their vehicles manufactured at plant thoroughly inspected for control system, quality checks, test drive before passing through factory works for dispatch to the authorized dealers appointed on a principal to principal basis for sale of their vehicles. They are supported by excellent dealerships/authorized service centres having excellent workshops for servicing of the cars/vehicles which are manned by qualified and experienced personnel only. They have 119 Authorized Dealers, 245 Authorized Service Centre, 219 Authorized Service Points and 222 Authorized Service Outlets and all of them are working efficiently giving service to the customers in their steps. They have 800 workshops in the country. They have number of such workshops in the city of Guwahati and their workshop had dedicated helpline to assist the customers in distress situation with Toll free helpline. Every procedure for service/check up is standardized and procedure are laid down for the service centres , workshops etc. for carrying out necessary service/check up/replacement as made required. They as manufacturer and the car owners are bound by the terms and condition of the warranty policy applicable for the cars. The allegations given by the complainant are all falses and they are abuse of process of law. The vehicle has no manufacturing defect. The complainant does not fall under definition of consumer dispute under the Consumer Protection Act. The complainant neglected to follow the guidelines given in the owner’s manual as recommended for smooth and maximum performance of the said car viz. correct operating procedure –do’s and don’ts for maintenance and performance of the car. They related on terms and conditions of warranty, owner’s manual and service book. As per instruction given in the owner’s manual and service book which amounts to agreed terms and contract, the owner of the car is advised to follow certain guidelines for maximum performance of the car. In this case, there were instances of maintenance faults noticed by them during free servicing as well as on paid service that complainant was advised to follow in the instruction given in the owners service book and manual for smooth and maximum performance of the car. The complainant had been operating the car in the muddy area, due to which mud and dust particules were accumulated on the condenser fan, which, in turn, has contributed to the low performance in the air conditioner. As per Clause I of the warranty application for the subject utility vehicle, the warranty shall be limit for 24 months from the date of the sale of the vehicle or 75,000/- k.m. run, whichever is earlier from the date of sale. However for commercial application, warranty shall be limited to 18 months or 50,000/- k.m., whichever occurs earlier subject to fulfillment of other terms and condition of warranty. In this case they rely on Clause No.5 of the warranty which states –“ 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 centres or service points in any way, so as, in our judgment 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 are not carried out by the buyer through our sales or service establishments , our authorized dealer or service centre or service points.” In view of improper maintenance of the vehicle and meeting of accident by the vehicle the warranty ceases to exists. The said car met with an accident and brought to the workshop of Ghosh Brothers, Tezpur for accidental repairing. But the complainant suppressed that fact. As per Clause 7 of warranty in the case of accident or pollution warranty shall not apply to any repairs or replacement. The car purchased by the complainant is a well established product in the market and customers are wishing said product after being satisfied with condition of the car with performance. The instant car was delivered after carrying out of Pre-Delivery Inspection by the policy and these type of car are approved by Automotive Research Association of India (ARAD). They are “ISOTS/ 16949” certified, which is international standard for quality system for all the automotive company and they are maintaining international standard for quality system. Whenever any car reports to their workshop for scheduled service or for any repairs, the complaints/grievances of the customers are recorded in job card, which do not imply admission of any defects in the vehicle, but a mere representation of customer’s grievances of the said car and thereafter, standard checks are carried out at the workshop and observation is recorded by the service advisor on the back side of the job-card which helps the customer to know about condition of his car. The car is checked at the workshop by Quantity Inspector (Q.I.) and by Diagnostic Expert cum Trainer(DET) during pre and post repairs to ensure quality workmanship . The service advisor who are conduct training to provide proper job explanation of the works carried on and even provides test drive to the customer at the delivery of the car after free servicing/repairing to the entire satisfaction of the customer. The car as attended by their dealers/ service points fully complied with warranty/assurance and specification provided for it by manufacturer regarding quality and performance of the car. Hence there can not be any complaint of deficiency of service against them. The complainant alleges that the car has manufacturing defect without having produced any expert opinion from notified laboratory to prove that the car suffers from manufacturing defect. Thus, he violated provisions of Sec.13(1)© of Consumer Protection Act and therefore, his complaint of manufacturing defect cannot be substantiate. The complainant purchased the car on 30.6.2009 and till 29.1.2010, it has covered 10,140 k.m. and that a period of 7 months it had covered 1,448 km per month and this fact shows that the said car is in roadworthy condition and the job carried out on the car are minor and running repairs and on occasion for the accidental repair, which were required to be carried out due to regular, continuous, extensive and faulty uses of said car. They have been prompt and swift to attend to the alleges grievances under the warranty. The claim of the complainant for refund of the price of the car is not tenable and replacement is unsustainable. The complainant has not implied the authorized workshop as party for the reasons based known to them. While authorized workshop presence his vital in disposing the dispute and therefore, the complainant is liable to be dismissed for non-joinder of necessary party. The complaint is liable to be dismissed u/s 26 of the Consumer Protection Act. It was filed with a molafide intention to cause harassment to them. This Forum has no jurisdiction to entertained , try and adjudicate the present complaint. As all the questions raised by the complainant can be appropriately done by only by a civil court. The vehicle was handed over at the time of purchasing by the dealer of “Pre Delivery Inspection” which is dtd.30.6.09. The complainant reported A/C cooling defect to Opp.Party No.1 on 5.7.2009 from where an A/C specialist was sent to Tezpur and it was found that only the Switching knob of hot air to cold air was not proper due to which hot air was getting mixed with cold air and thus, the performance of a.c. was less and that problem was addressed satisfactorily by setting right knob and the complainant was also explained about operation and trial of A/C was done, but he was not asked to take the car to Ghosh Brothers , Tezpur. The Complaint No.1 – 6949094890 made by the complainant done on 5.7.09 was attended satisfactorily by deputing mechanic onside repair. The complainant reported his vehicle twice to Ghosh Brothers , although he was not agree to send the vehicle to Opp.Party No.1 vide their letter 9.7.09 the complainant produced the vehicle to Ghosh Brothers (Tezpur) on 27.8.2009 at 4,145 k.m. for accidental repairs and on 29.1.2010 at 1940 for first free servicing and for none of the occasions the complainant reported any problem in A/C nor it has been observed by the workshop . The vehicle met an accident and it was repaired on 27.8.2009 to the satisfaction of the complainant, who acknowledged by signing satisfaction note and the Instant Feedback Instant Redressal Form by giving rating 10 for service . The complainant again reported for complain of less cooling efficiency of a.c. to the Opp.party No.1 on 7.7.2009, wherein on inspection large amount of mud and dust particles were found on the condenser fan at the front which was due to the operation of car on bad road condition and in muddy area of the roads affected with water where the complainant resides . But the problem was rectified to this satisfaction by cleaning the condenser fan under warranty and service manager of Opp.Party No.1 requested the complainant to wait for some time so that a.c. gas could be recovered, measured and the actual quality of gas available in the system. The complainant was asked to wait for using special A/C equipment to verify to detect leakage , if any, but the complainant did not allow the verification of the quality of gas as requested, and therefore, request by Opp.Party No.1 to verify the quality of gas, a.c. cannot be construed as admission of defects in the a.c. or any expert report. However, Opp.Party No.1, also sent a letter dtd. 9.7.2009 stating the fact that complete check up of the car was not done as the complainant was not interested and as the complainant was not satisfied with the performance of the A/C. The complainant himself was reluctant to get the a.c. of the car to examine, inspite of efforts by the opp.parties, which proves non-co-operative conduct of the complainant. Thus , the averments of the complainant that car has manufacturing defects is not tenable. That the car was reported on 21.7.09 at 1,482k.m. to Opp.Party No.1 for first free servicing with complaint of a/c. cooling insufficient that the a.c. gas was recovered and recharged and everything was found alright to the satisfaction of the complainant and he also acknowledged the same by signing satisfaction note dtd. 21.7.2009 and thereafter neither the alleged problem was reported after a period of 22.7.09, nor observed during three services performed on 27.8.09 at 4,145 k.m., 25.9.09 at 5,416 k.m. and 29.1.2010 at 10,140 k.m. and the vehicle covered 8,568 k.m. As per job card dtd.29.1.10 and IFIR during that period the complainant raised no problem of a.c. except minor complaint. The complainant won a music system by scratch and opp.party on several occasion asked him to collect the music system, but he did not collect the same. They did not harass the complainant or put him in any mental and physical agony or caused financial loss to him They are not guilty of deficiency of service towards the complainant and hence the complaint is liable to be dismissed.
4) We have perused pleading of the complainant as well as of Opp.Party No.2 & 3. We have perused evidence adduced by the complainant side. We have also perused the argument of Ld.counsel of the complainant sides’ Mr.Nilakanta Neog and of Ld.counsels’ of Opp.Party No.2 & 3 sides’ Mr.Amitabh Choudhury and Ms. Deepamoni Kalita.
5) It is found that both sides’ admit that the complainant Smti Nidhi Saxena Bhattacharyya had purchased one Indica Vista Aura Quadrajet ,P-III, Chassis No.611452BQZP21082 and Engine No.0082000-001554 from Abhishek Motors Pvt.Ltd., Silpukhuri, Guwahati , which is a dealer of Tata Motors Ltd., Mumbai, on 30.6.09 by paying value of Rs.4,69,101/- in cash and took delivery of said vehicle on that very day and get it registered through D.T.O. Sonitpur, Tezpur vide registration No. AS12-F/8695 having validity from 30.6.2009 to 29.6.2024.
6) We have found that in evidence the complainant states that after purchasing the said vehicle they proceeded to Tezpur on 1.7.09 switched off the A/C as it was raining and on 4.7.2009 the weather was clear and they found A/C was not at all effective even in the month of July and then her husband on 5.7.09 called the Abhishek Motors and asked them to replace the vehicle, but her husband was informed that one mechanic will be on Tezpur on Sunday and they are to contact him and one mechanic by name Mr.Bayon visited Tezpur and checked the vehicle and told them that the panel has to be opened to rectify the problem and he took the car for test drive about 200 km. and found air flow again became minimal and on informing Abhishek Motors, they are advised to take the vehicle to Ghosh Brothers work-shop at Tezpur and to meet one Simanta Sarma there. Her husband also lodged a complaint to Tata Motors , Customer Care vide complaint No. 1-6949094890 which is read as follows-
“ I purchased a vista aura quadrajet from Abhishek Motors in Guwahati on 30th June, 2009. The blower airflow in the vehicle (prepared for delivery) drastically reduced even while we were testing the ac and heater. They rectified it and the mechanic told us that we must have handled the knobs harshly because of which something came off inside.(I can tell you it is not true !) It was raining and so we could not assess the afficacy of the ac (my earlier car was a non ac one and so do not have much idea). When asked, we were assured that the ac is working fine. I asked about the cooling capacity about which they have no idea. Yesterday the sum came out and I realized what I got- a not at all effective AC in the brand new car ! My friend’s four year old Maruti Wagon-R is many time more effective. I sweated for almost half an hour with the AC on (Please note that temp.in Assam do not rise as high as in places like Delhi.) To top it, this morning the blower problem reappeared again ! I am asked by the dealer to bring the car to their work-shop which is 200 kms. From where I live. If I have to go through this I would rather have brought a second hand car ! My experience is that defects that come from the factory generally keep recurring and the anxiety of driving a problem prone car will always remain. For a woman who would be driving, it is going to be touch. The vista as a car otherwise is quite good and I feel proud as an Indian for this achievement by Tata Motors.
My request to you is to replace the vehicle (on which I no longer have confidence) with another one. I requested the dealer too for the same. It is now clear that the defects pre-existed at the time of delivery. I went for a Tata vehicle because of my strong Indian sentiments and I am sure Tata motors is going to respect that . it is also about the hard earned money of a humble university teacher.”
Her husband took the vehicle to Ghosh Brothers at Tezpur on 6.7.09 where the mechanic told him that he has getting smell and feel of coolant gas from underneath and left side dash board, but he required help of the electrician who was leave on that day. Then her husband contacted Mr.Jha, of Abhishet Motors and Mr.Jha told him to take the vehicle to Adabari ,Guwahati and then her husband on 7.7.09 along with one Pankaj Sarma brought the vehicle to the work-shop of Abhishek Motors at 10-15 A.M. driving about 220 k.m. from Tezpur where a.c. was checked and he was told that some dust/mud has accumulated and it will be o.k. once that was cleaned and the mechanic brought out the vehicle from the work-shop and told him that A/C was working. But her husband found that the cooling was not adequate and he insisted for comparing the grill temperature with that of another vehicle with similar model of the work-shop and it was done but their vehicle did not go below 17 degree while another vehicle went down to 6.6 degree celsius in about 5 minutes and then the vehicle was brought by one Sri Hemen Sarma, Supervisor for some testing and one electrician told her husband and Pankaj Sarma that the quantity of gas was 510 gms, as against the recommended 450 gms, so extra amount was being taken out and that is a mistake admitted by Mr.Nath , General Manager , work-shop. The entire panel of the car starting from the dial at the top, the music system down to the gear lever had been taken out in attempting to rectify that, but cooling seemed to increase a little, but still grill temperature did not come down to the desired level. Even though it was almost dusk and outside temperature reasonably down by that time and work-shop man again wanted to increase the gas quantity and were trying all sorts of thing or otherwise a.c. was faulty on too many counts despite passing through the QA level at Tata Motors. Then, her husband being dis-satisfied to back the vehicle to Tezpur and reached Tezpur at 12 midnight. Thereafter, on 9.7.2009, her husband called up Mr.P.Goswami, co-ordinator of Abhishek Motors and requested him to replace the vehicle, but the latter refused to replace the vehicle and told her husband that what they will do where the said car was running 1000 km., and her husband told Mr.Goswami that in a similar case the vehicle of one of his colleague Dr.A.K.Das of Tezpur University whose did 600 kms.run, the request for change was honoured and they Mr.Goswami hand over the phone to Mr.Nath, G.M.work-shop and her husband requested Mr.Nath to replace the vehicle stating that the said vehicle come out from the factory with problems in the engine, the gear box and the a.c.system, generally never gives 100% performance later even with repair, and her husband went on offering to refund discount given and also to accept the tyres etc. of present car in the replaced vehicle and Mr.Nath assured her husband that he will contact Tata Motors and inform them in evening. By receiving no answer from Tata Motors, her husband lodged another complaitn No. 1-7010404531 dtd. 10.7.2007 which is read as follows-
“Complaint No. 1-6949094890 Chassis No. : 611452BQZP21082
In continuation-5/7/09: A dealer mechanic who happened to be at Tezpur xould not rectify. 6/7/09: Advised to go to Ghosh Bros, Tezpur, Mechanic was getting smell of coolant from underneath the dash board. Dealer asked me to bring the vehicle to their Adabari, Guwahati workshop. 7/7/09: Reached workshop driving 220 kms. They told mud had accumulated and now it is ol.Cooling was still not adequate, so insisted for comparing the grill temperature with another vehicle-did not go below 17C while on the other went down to 6.6 C. Vehicle was taken to their Silpukhuri workshop . Electrician told that the gas quality was more,so the extra amount was taken out. Problem was not solved; they said hot air from the engine is getting mixed with cool air. The entire panel on my brand new car had been taken out. Grill temp.did not come down to desired level. Then they again wanted to increase gas quality when I told that trial and error method must stop. I took back the car to reach Tezpur at 12:00 midnight. 8/7/09: No response on my request for replacement from Tata Motors and Abhishek Motors. 9/7/09: Called Mr.P.Goswami (Director) of Abhishek Motors. He told replacement is not possible. I informed Isum Motors, Tezpur (Maruti) not only replaced the vehicle of my colleague which did 600 kms, but also had changed the car model on request. Also talked to Mr.Nath (GM,workshop) who promised to get back this evening. 13/7/09: Still waiting for the promised call from Mr.Nath ! Replacement of the car which was defective when delivered by assuring it is ok is the only option to undo the wrong done at the time of delivery.
After receiving no positive attitude from the Tata Motors they sent a pleaders notice to Abhishek Motors, Guwahati with a copy to Tata Motors Ltd. by Ex.5 (notice dtd.16.7.2009 ) through Ld.advocate Mr.Girindra Bora, Tezpur, who after receiving the said notice asked her husband to bring the vehicle to Guwahati and then her husband brought the vehicle to Guwahati on 21.7.2009 with one Pranjal Bora, a student of Tezpur university; and the mechanic of Abhishek Motors again checked the A/C and gas, and found that gas was less than recommended 390 gms as against 440 ± 20gms and Mr.Nath admitted that fact and entire gas was then drawn out and refilled and some cable was again changed on advise from a person in Kolkata over phone. Mr.Nath also asked her husband what will be the registration and insurance if the car is changed and they immediately contacted the D.T.O., Tezpur and National Insurance Company ,Tezpur and they told them that there will be no problem and then Mr.Nath told them that only red and black colour is available presently and they were to wait for the colour. But they are insisting that A/C was o.k. and want to give extended warranty, but her husband refused to accept the offer. Then Mr.Jha and Mr.Nath requested her husband to give them few days time. On 24.7.2009 Mr.Nath called on them and assured them that he would get touch with Tata Motors on the matter, but finding no word from Abhishek Motors, her husband called Mr.Nath, on 4.8.09, but Mr.Nath told that A/C was working as expected and there will be no replacement and they even did not get the music system and even a tray underneath from passenger seat were missing, which was later discovered by the mechanic, Ghosh Brothers, Tezpur. Despite of their pleader notice; and despite of the failure of the mechanics of the opp.parties to repair the a.c. system of their vehicle, the opp.parties declined to redress her grievances, and as result, she has suffered loss and damage even within warranty period of two years from the date of purchase of the vehicle . The opp.parties are found extremely negligent in addressing her complaint .
7) We have perused cross-examination of C.W.1, but in the cross examination the opp.party side is found to have failed veracity of C.W.1.
8) C.W.2, Sri Satyajib Bhattacharyya states in evidence that on 30.6.2009 he along with C.W.1 as well as his brother, Rajib Bhattacharyya and his daughter Ms. Migyakshi Bhattacharyya went to Abhishek Motors on 30.6.09 and contacted Sanjib Jha to prepare a vehicle as they want to purchase and they test one and found a.c. vents was defective and then tested second car of which a.c. blower, air flow reduced to negligible level and mechanic told them that the said problem was minor one and had been rectified and they took delivery of the said vehicle on 30.6.09 making full payment and proceed to Tezpur on 1.7.09 switching of the a.c. having the day was rainy day and when on 4.7.09, the weather was clear they realized that a.c. was not at all effective , even in the month of July and then he called up Abhishek Motors and asked them to replace the vehicle and the latter told him that the mechanic will be on Tezpur on Saturday whom he is to contact and a mechanic, Mr.Bayon visitied Tezpur checked the vehicle and told them that the panel has to be opened to rectify the problem and the mechanic managed to increase the air flow , but the cooling did not improve and the mechanic did a test drive of 200 km., but air flow again became minimal, and then Abhishek Motors advised them to take the vehicle to Ghosh Brothers Tezpur,and then he called the Tata Motors Customer Care and lodged complaint No.1-6949064890, the contents of which is described by C.W.1 in her evidence. On 6.7.09 he brought the vehicle to Ghosh Brothers, Tezpur and the mechanic found smell of coolant gas from underneath the lever side of desk board, but he refused to open the desk board as the electrician is required electrician who was only on that day, and then he informed Mr.Jha about the matter and Mr.Jha told him to take the vehicle to Adabari and ; then he on 7.7.09 brought the vehicle to Adabari (Guwahati) where a.c. was checked; and where, he was told that some gas had accumulated, and it will be o.k. once it is cleaned and the vehicle was taken out from the work-shop, but cooling was still not adequate and he insisted for comparing the grill temperature with that of another vehicle of similar model in their workshop; with 2000 + engine RPM, the grill temp. did not go below 17 degrees in our vehicle while on the other one it went down to 6.6 degrees Celsius in about 5 minutes. If his wife did not insist, he would have been taking back the vehicle in that condition. The vehicle was then taken to their Silpukhuri workshop by Mr.Hemen Sarma, supervisor for some testing. However, when he and Mr.Pankaj Sharma reached their Silpukhuri Workshop later, they saw that the coolant filling machine was being connected. The electrician, one Mr.Chakraborty told that the gas quantity was 510 gms, as against the recommended 450 gms, so the extra amount was being taken out. However this was later found to be a mistake as admitted by Mr.Nath, GM workshop in the next visit. When that did not solve the problem, they said that hot air from the engine was getting mixed with the cool air. The entire panel of the brand new car, starting from the dial at the top, the music system, down to near the gear lever had been taken out in attempting to rectify that . The cooling seemed to increase a little but still the grill temp. did not come down to the desired level even though it was almost dusk and outside temperature lowered reasonably by that time . Then they again wanted to increase the gas quantity. Then he decided that enough is enough, this trial and error method on the new vehicle has had its share. The fault could not be detected and the mechanics of M/S Abhishek Motors were trying all sorts of things or otherwise the AC was faulty on too many counts despite passing through the QA level at Tata Motors factory. They took back the car to reach Tezpur at 12”00 midnight. On falling to receive any response as Tata Motors never contacted us with reference to their complaint, on 9.7.09, he called up Mr.P.Goswami (Director) of Abhishek Motors and reiterated their request for replacement of vehicle but he was told that replacement is not possible and that they will repair the AC. He tried to impress upon him that their request is not for warranty claim for faults developed subsequent to a defect free care being delivered . Rather, it is about the replacement of a defective car delivered in the first place. Mr.P.Goswami went on to ask him what will they do with the car which has done some 1000 kms.run that the chassis number has been entered in the insurance policy. Whereas most of the 1000km. was actually for testing the vehicle and commuting between Guwahati and Tezpur for repair of AC. We did not understand how as a customer, we were supposed to be concerned about what they do with the car . He also informed Mr.Goswami that Isum Motors, Tezpur,(Maruti Dealer) not only replaced the vehicle of their colleague, Dr.A.K.Das of Tezpur university which did some 600 kms., even though it was purchased locally, but also had honoured the request for change of the car model as he did not feel comfortable with the particular model because of the problem coming up.Mr.Goswami then handed over the phone to Mr.Nath (GM, workshop) whom he again impressed upon the need for replacement to undo the wrong done at the time of delivery and for their satisfaction of driving a new car. He also registered another complaint on 10.7.09 vide complaint No. 1-7010404531, the contests of which is explained by C.W.1 in her evidence. After failing to receive any response from Abhishek Motors, and Tata Motors, his wife sent a pleaders notice to Abhishek Motors with a copy to Tata Motors Ltd. to replacement of the vehicle and after receiving the said pleader notice M/S Abhishek Motors called them to bring the car to Guwahati and then they brought the vehicle to Guwahati on 21.7.2009 along with Pranjal Bora , a student of Tezpur University and mechanics of Abhishek Motors checked the a/c gas and found the gas was less , then they recommended (390 gms as gas 440 ± 20 gms ) standard and Mr.Nath admitted that reducing the gas last time was a mistake, and then entire gas was withdrawn and refilled and the cable was also checked on the advice by someone from Kolkata given over phone and then Mr.Nath asked what will happen when insurance and registration if the car is changed and then they immediately spoke to D.T.O.,Tezpur and N.I.C.Ltd., Tezpur and they replied that there will be no problem, and then Mr.Nath told them that red and black colour was already available on that time. But he told Mr.Nath they can wait for the colour, but, later on, they again insisted that a/c of the car was o.k. and he wanted to give extended warranty. But he declined to accept the offer and insisted on replacement and then Mr.Nath assured him that he will get in touch with Tata Motors, but finally on 4.8.09, Mr.Nath told him that there will be no replacement. The opp.parties did not give even the car music system and they also found that a tray underneath the front position seat was missing which was discovered later by mechanic of M/s Ghosh Brothers, Tezpur. The vehicle they purchased was suffering from certain manufacturing defect which was beyond repairing and the a/c of the car does not work even after employees of the Opp.Party No.1 trying to repair it several times since the date of purchase of the car, but they could not rectifying the defect of the a/c and none of the opp.parties came out with any solution for redressal of their grievances in respect of the car and that is why they are suffering from loss and damage, and therefore, opp.parties are liable to pay compensate to his wife.
By cross examining C.W.2 by the counsel of Opp.Party No.2 and 3 side has failed to break his veracity . We have also found that C.W.2 corroborates each and every statement of C.W.1. Therefore, all the statements give by C.W.1 is believable . Secondly, C.W.4, Pranjal Bora, a Research scholar of Tezpur University, by supporting C.W.1 and C.W.2 ,states that he, on 21.7.07, accompanied C.W.2, while C.W.2 brought the alleged vehicle to Adabari worlshop and then to Abhishek Motors Pvt.Ltd. at Adabari the vehicle was initially checked and again it was taken to Silpukhuri workshop for solving the problem of air conditioner. C.W.5, Sri Arun Kr.Bordoloi, also by stating that on 21.7.2009 he accompanied C.W.2 , while the vehicle of C.W.1 taken to Adabari workshop of M/S Abhishek Motors Pvt.Ltd. where a/c of the said vehicle was checked up and finally the vehicle was taken to Silpukhuri workshop where a/c gas was withdrawn out and refilled and some cables were also checked on advice of someone from Kolkata given over phone and the workshop people insisted that a/c was o.k. and offered to give extended warranty, which was refused by C.W.2, and on trial of the vehicle it was found a/c problem persisted and C.W.2 then compelled to bring back the vehicle to Tezpur without rectification of the problem.
In this case, the Opp.party No.1,2 & 3 side adduce no evidence to establish their pleading, and therefore we are constrained to hold that whatever the witnesses of the complainant states in evidence are true facts.
9) It is both sides’ admitted fact that the complainant Dr.Nidhi Saxena Bhattacharyya had purchased a Indica Vista Aura Quadrajet having air-conditioner from dealer of Tata Motors Ltd. M/S Abhishek Motors, Guwahati, Silpukhuri, Guwahati (Opp.Party No.1) on30.6.2009 making full payment of Rs.4,69,101.00 in cash to them and the vehicle was registered at Tezpur vide registration No. AS-12 F8695.
10) From analyzing evidence as above , it is clearly found that on 1.7.2009 the complainant and her husband proceeded to Tezpur by the said vehicle the purchased from Opp.Party No.1 on 30.6.2009, but found that a/c was not switched on and again on 4.7.09 they realized that a/c was not effective at all and then her husband, on 5.7.2009 called up Opp.Party No.1 and reported the matter and Opp.party No.1 sent a mechanic to Tezpur on 5.7.09 and the said mechanic checked the vehicle, but failed to improve the performance of the a/c even after check drive, and then Opp.party No.1 advised the complainant to take the vehicle to Ghosh Brothers, Tezpur and on that very day the complainant lodged complaint to Opp.party No.2, Tata Motors, a complaint vide No. 1-6949094890 which was received by them; and on 6.7.09 the complainant was told by the mechanic of Ghosh Brothers that he felt of coolant gas from the underneath left side desk board, but he declined to open it as an electrician is required and then her husband informed Mr.Jha of OPp.party No.1 about the matter, and on advice of Mr.Jha, her husband brought the vehicle along with Mr.Pankaj Sarma to Adabari workshop,Guwahati on 7.7.09 where the a/c was checked and her husband was told that a/c was o.k. and while her husband brought out the vehicle, he realized that cooling was still not adequate and he insisted to compare the cooling with another vehicle and found that their vehicle did not go below 17®c while another one gone to 6.6®c in about 5 minutes and then he took the vehicle to OPP.Party No.1 where electrician told him that gas quantity was 510 gms against recommended 450 gms, and the extra amount was taken out, but still it did not solve the problem, and still heat air from the engine was getting mixed with the cool air, and cooling seemed to increase a little, but still the grill temperature did not come down to the desired level even though it was almost dusk and outside temperature lowered by the time; and then the mechanic again wanted to increase the gas quantity , but her husband decided that the trial and error method failed and the problem will not be solved and then her husband took back the vehicle to Tezpur. Thus, it is established that just after one month after purchase of the vehicle, the a/c of the said vehicle failed to work and complainant side informed opp.parties about the matter; and at first the mechanic of Opp.Party No.1 tried to solve the problem at Tezpur , but he failed to solve the problem and in the second phase, the mechanic of the Ghosh Brothers,Tezpur who was engaged by Opp.party No.1 to solve the problem, also failed to solve the problem; and in the third phase on the advice of the Opp.party No.1 the vehicle was taken to Adabari workshop of the opp.parties on 7.7.09 and there also the mechanic failed to solve the problem ; and in the fourth phase on advice of Opp.party No.1 the vehicle was taken to the workshop of Opp.party No.1 at Silpukhuri and there also the mechanic tried to solve the problem and then the complainant’s husband became dissatisfied took back the vehicle to Tezpur, their residence, without working of the a/c. This factual situation clearly established one thing that the said a/c set of the said vehicle as well as the engine had inherent manufacturing defect, in result of which , in four workshops of the opp.parties, the mechanics failed to make the a/c of the said vehicle functional . It is already found that there is no evidence that the complainant side had done certain things, or driven the vehicle negligently in result of which, the a/c became irreparable . Therefore, we constrained to hold that the said vehicle has inherent manufacturing defect and that is why a/c of it is not functioning.
11) We have also found that the complainant’s husband on 5.7.09 and on 10.7.09 sent notice to the Opp.party No.2 and 3 requesting them to replace his vehicle on the ground that the a/c of their vehicle was not functioning and ultimately the complainant side repeatedly requested the officer of Opp.party No.1 namely Mr.Jha and Mr.Nath to replace the vehicle with a new one and they have also discussed the matter with Tata Motors, but finally they refused to replace the vehicle. Thus, we are of opinion that the opp.parties are deficiency of service to the complainant which is that they have failed to replace the vehicle which the complainant had purchased from them on 30.6.09 and which had manufacturing defect , in result of which a/c does not function at all.
Thus, we are of opinion that the complainant is actually entitled to replacement of the vehicle, Indica Vista Aura Quadrajet (Chassis No.611452BQZP21082 and Engine No.0082000-001554 Registration No. AS12-F/8695) which she had purchased from them on 30.6.09 with a new one on the ground that it has manufacturing defect, in result of which, a.c does not function at all. But it is both sides’ admitted fact that the vehicle is in plying condition now without a/c and the complainant has been using the vehicle since 30.6.09 and in result the value of the said vehicle is depreciating . So in such situation, we are of opinion that it will be just and legal if we direct the opp.parties to pay a lump sum amount of Rs.3,00,000/- with interest at the rate of 12% from this day as compensation for not replacing the vehicle and to get back the vehicle from the complainant and also to pay Rs.20,000/- for causing harassment to the complainant and putting her on mental agony by not replacing the vehicle inspite of repeated request as well as Rs.20,000/- as cost of proceeding.
8) Because of what has been discussed as above the complaint against Opp.Party No.1 is allowed on exparte and against Opp.Party No.2 & 3 on contest, and they are directed to pay Rs. Rs.3,00,000/- (Rupees three lakhs) only alongwith interest at the rate of 12% p.a. from today as compensation to the complainant for not replacing the vehicle she had purchased from Opp.Party No.1 on 30.6.09 to get back the vehicle and also to pay Rs.20,000/- (Rupees twenty thousand) only as compensation for causing harassment to the complainant and putting her on mental agony by not replacing the vehicle in spite of repeated request as well as Rs.20,000/-(Rupees twenty thousand) only as cost of proceeding , to which they are jointly and severally liable. They are also directed to satisfy the award within 45 days , in default of which, other two amounts shall also carry interest at the same rate.
Given under our hand and seal on this the 4th day of Jan,2018.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
