Assam

Dibrugarh

CC/30/2013

SMTI SHANTA KAR - Complainant(s)

Versus

M/S BORAH AUTOMOBILE PVT. LTD - Opp.Party(s)

MISS NABAMALLIKA PHUKAN

30 Aug 2017

ORDER

The case of the complainant in brief is that the complainant purchased a vehicle bearing registration No.AS-06/AC-6035 TATA Venture –EX from OP No.1 on payment of Rs.4,83,648/- on 31.10.12. The complainant and her husband being unemployed purchased the vehicle for their livelihood and used as commercial vehicle. Unfortunately, on first week of September, 2013 the complainant found oil leakage of the fuel pump of the vehicle as such, vehicle was given at the service centre of OP No-1 on 13.09.13. The mechanic attended the vehicle and stated that it will take 2-3 days for repairing. So the husband of the complainant delivered the vehicle to OP No-1. After receiving the vehicle by the work manager  of OP No.1,till 4^th day of delivery OP No.1  did not intimate to the complainant, so he made an enquiry with OP No.1 on 19.09.13 and came to know that the fuel pump has already been sent for repairing to the OP No-2 and also provided a phone number. While the complainant contacted with OP No-2 over phone the OP No.2 informed that the fuel injector equipment (FIE) is ready for delivery, but surprisingly, after an hour of the information again informed that the cost of the repairing would  be around Rs.35000-40000/-. The complainant became surprised when the OP No.2 informed about the charge of repairing because, the vehicle was purchased on 31.10.2012 and the vehicle got damaged within the warranty period. So the complainant informed OP No.2 regarding warranty but the OPs stated that there was rusting and water contamination on the fuel pump hence the warranty was rejected. The complainant was shocked to hear the reply of the OPs and the complainant failed to believe because there was no occasion that the FIE can be contaminated with water and to get rusting. Thereafter, the complainant made several attempt to contact with OP No.2 but found his mobile switched off. Subsequently, legal notice was issued on 07.10.13 through local advocate whereas, the OPs have not made any reply. Later on, after filing the case before the Forum; OP No.1 on 01.11.13 handed over the vehicle to the complainant. For the above act of the OPs the earning of the complainant is totally stopped due to sudden closure of complainant’s business because the vehicle was the only source of income of the complainant and her husband. Further,  the complainant have to bear some more expenditure of Rs.17539/- for repairing the vehicle outside. The above act of the OPs were out and out deficiency in service due to  their negligence for which the complainant suffered immense loss, torture, harassment and agony. Hence, the complainant filed this case claiming Rs.5,00,000/- as compensation for causing unnecessary harassment and mental anxiety to the complainant, Rs.17,539/- for making extra expenditure for repairing the vehicle outside after the vehicle being released and Rs.1,500/- per day from the date of taking delivery to the day till return of the vehicle along with cost of the litigation.

      After registering the case notices were issued to all the OPs to which all of them have submitted their written statement separately and thereafter parties have submitted their evidence and arguments in this case. OP No-1 in his written statement stated inter-alia that the case is not  maintainable in law as well as in fact. The OP No.1 admitted that the vehicle was placed for repairing on 13.09.13 at 10:35AM but the service advisor and the mechanic who attended the vehicle for check up never informed the complainant that the vehicle could be repaired within 2-3 days. Besides, the service advisor of OP No.1 informed to the complainant that the parts such as tyre, batteries, rubber parts, electrical equipment, fuel injector equipment, power steering equipment, AC equipment not manufactured by TATA Motors, supplied by other parties shall not apply in the warranty but the complainant shall be entitled to, so far as permissible bylaw of such rights as TATA Motors and Dealers will assist the buyers in taking up the complainant with the respective manufacturer and their decision on the warranty will be final. As such, after being delivered the vehicle before the OP, the fuel pump (FIE) was removed from the vehicle and then sent to M/s Pioneer Diesel i.e. OP No.2 who is authorised service dealer under Lucus India Service Ltd, Makum Road, Tinsukia, Assam on the same day through ancillary referral form and the fuel pump was duly delivered to OP No-2 and further informed to the complainant that as soon as  the answering OP No.1 will get back from OP No.2 it will be intimated. Further, it was also informed that as it was Viswakarma Puja on 17^th September repairing may be delayed. So far the damage of the vehicle is concerned, the OP No.1 stated that the vehicle was lying in the garage of OP in a modern workshop having full wall and in all weather proof shed and 24 hours security so question of damage does not arise. Further, OP No.1 stated that he receive a noticed dated 07.10.13 from the advocate of the complainant and after receiving the notice the OP took up the matter with OP No.2 and advised to take necessary action early so that answering OP is not harassed without any fault of their part. The answering OP however, received the fuel pump (FIE) from Pioneer Diesel (OP No.2) on 31.10.13 and immediately on receipt of the fuel pump from OP No.2 the answering OP duly repaired the vehicle in question by installing the fuel pump and delivered the vehicle to the complainant on 01.11.13 at round 5PM and repairing charge received from the complainant was Rs.1254/- only. On receipt of the above vehicle by the complainant after being pleased handed over note of satisfaction at the time of taking delivery over the vehicle and wrote - “ I am withdrawing the court notice issued by my lawyer Mr. Debasish Roy regarding my vehicle on 7^th October ”. Considering the above the OP No.1 has not committed any deficiency in service on their part and therefore, prayed to dismiss the case with cost.

OP No.2 while filing the  written statement stated that when the complainant contacted over phone in respect of repairing of fuel injector equipment (FIE), OP No.2 replied that due to Viswakarma Puja same will not be repaired for few days and when the complainant asked regarding cost of equipment then he replied that it would be Rs.35,000-40,000/-. While the complainant stated that the vehicle was purchased on 31.10.12 still defective part covered by warranty then OP No.2 replied that  FIE was damaged due to rusting and water contamination on the material hence, it is not covered under warranty. The OP No.2 further stated that the manufacturer of said FIE is DELPHI TVS DIESEL SYSTEM LTD and LUCUS INDIA SERVICE is the service agent of DELPHI TVS DIESEL SYSTEM LTD and TATA Motors  often purchased FIE for their vehicle from DELPHI TVS DIESEL SYSTEM LTD and accordingly they have sold a warranty agreement. The instant FIE of vehicle vide Chassis No.MAT483539CYJ23047 is also manufactured by DELPHI TVS DIESEL SYSTEM LTD and the OP No.2 is only service dealer of LUCUS INDIA SERVICE who is service agent of DELPHI TVS DIESEL SYSTEM LTD and bounded upon some rules and regulations. As per warranty guideline and policy of the LUCUS INDIA SERVICE if any part damages due to rusting and water contamination that part will not be covered by warranty. The FIE was damaged due to rusting and water contamination of the material which has not been covered by warranty but on 27.09.13 while the complainant came to Tinsukia to meet the OP No.2 the complainant stated that he is not able to pay the repairing cost of FIE and also requested him to repair the same over warranty coverage. So the OP No.2 requested LUCUS INDIA SERVICE  to give goodwill warranty to the complainant and accordingly goodwill warranty has been sanctioned by the Company. It is further stated that the OP No.2 after receiving the defective fuel pump from TATA Motors has performed his duties in proper care and diligent and after repairing the same handed over to TATA Motors and TATA Motors handed over the same to the complainant who issued a satisfaction letter and taken the custody of the vehicle. There is no deficiency on the part of OP No-2 and as such, prayed to dismiss the case against the OP No-2.

OP No.3 in their written statement stated that complainant is not a consumer within the meaning of the terms ‘consumer’ as defined U/s 2(i) (d) of the Consumer Act,1986. The complainant used the vehicle as commercial vehicle in order to generate profit and has covered more than 28,182kms within a period of 12 months  which itself speaks about extensive use of the vehicle in question. The complainant had failed and neglected to follow the guideline given in owner’s manual and maximum performance of the vehicle. In this case, there were instances of maintenance fault and operational fault noticed by the OP during free service as well as on paid service. For non-maintenance of the rules of the manual the vehicle subjected to misuse, negligence, improper or inadequate maintenance causing damage of the vehicle as well as water contamination in the fuel pump. The OP states that in view of the improper maintenance and service of the vehicle the warranty ceased to exist. It is

Further it is stated that complainant has purchased the vehicle on 31.10.2012 from the dealer of the OP and said vehicle in question till 01.11.13 had covered around 28,182kms. Thus, it appears that the vehicle in question within a period of 12 months, had covered 2348 kms per month which appears that the vehicle was absolutely in roadway condition except few minor repairs. It is stated that warranty of the FIE was rejected by the manufacturer of the FIE due to rusting of water contamination. The warranty terms and conditions of the owners’ service manual shall not be  application on the fuel injection pump and other parts of the  vehicle which are not manufactured by the answering OP but the warranty of the manufacturer shall be applicable as per law. The OP No.2 correctly rejected the warranty due to trace of water contamination in the FIP prove that the vehicle was not maintained accordingly and was negligently handled by the complainant. The complainant failed to avail the mandatory service which are required for proper function of the vehicle. The OP No.3 submitted that he has neither committed any deficiency of service nor any unfair trade practice. Moreover, the issue of FIP which is the only reason for filing the instant case has been resolved when the same was replaced under goodwill warranty of the vehicle was handed over to the complainant back on 01.11.13. There is no deficiency in service by the OP No.3 and prayed to dismiss the case with cost.

   In this case complainant gave evidence by swearing affidavit as PW-1 and exhibited as many as 13(thirteen) documents and also examined another witness as PW-2 in support of her case. on the other hand, OP No.1 examined Sri Manash Pratim Konwar and exhibited 9(nine) documents, OP No.2 examined Sri Emon Hazarika and exhibited 9(nine) documents to rebut the case of the complainant and OP No.3 examined Sri Tarun Chatterjee and exhibited no documents.   Complainant and OP No.1,2 & 3 submitted their written argument.

   DISCUSSION, DECISION AND REASONS THEREOF:

Upon going through the evidence, eocuments and the argument advanced by all the parties it is found that the complainant had purchased a TATA Venture-EX vehicle from OP No.1 on payment of Rs.4,83,648/- on 30.10.12 which was delivered on 08.11.12. The vehicle of the complainant was driven by her husband and it was used as commercial purpose for their livelihood. On 13.09.13 the complainant found oil leakage of the fuel pump of the vehicle for which the vehicle was taken to OP No.1 for repairing. The mechanic attended the vehicle and stated that  it was a very small defect and could be repaired within 2-3 days. Hence, the husband of the complainant left the vehicle in the custody of OP No-1. On 19.99.13 the complainant made enquiry about the repairing of the vehicle and came to know that the fuel pump had already been sent for repairing to the OP No.2 and also provided phone number 9954473039 of the OP No-2. While the complainant contacted with OP No.2 through phone, person from the other side informed that the fuel injector equipment is ready. But surprisingly, after one hour he informed that the cost of repairing would be Rs.35000-40000/-. Hearing the above the complainant was surprised because the vehicle was within the warranty period of one year. The husband of the complainant on 27.09.13 went to Tinsukia the workshop of OP No.2 clarified the matter but the OP No.2 informed him that he is not entitled to the benefit of warranty because fuel injector equipment was rusting due to water contamination on the material and hence the warranty was rejected. The complainant thereafter made several attempt to contact with the OP No.2 but the mobile phone of the OP No.2 remain switched off. Finding other no alternative the complainant was compelled to serve notice dated 07.10.13 upon the OPs through his advocate but even then the OP did not pay any heed upon the notice. As such, the complainant filed the present case on 01.11.13. As soon as the OP No.1 came to know that a case has been filed in this Forum on the same day OP No.1 returned the vehicle without proper repairing.

OP No.1 in his argument submitted that as soon as the complainant handed over the vehicle to OP No.1 the matter was immediately referred to OP No.2 service centre of LUCUS INDIA LTD for doing needful and thereafter it was the duty of the OP No.2 to repair the vehicle and OP No.1 had no role to play in the matter. OP No.2 after attending the matter came to know that leakage of fuel injector equipment was due to rusting and water contamination on the material for which the warranty is not covered because OP No.1 is bound  by the written contract of warranty and the clause 4 of the warranty clearly mentioned which read as under-

“As for such parts as tyres, batteries, transfer case, rubber parts, electrical equipment and fuel injection equipment, power steering equipment, A.C. equipment not manufactured by us but supplied by other parties, this warranty shall not apply, but buyers of the vehicle shall be entitled to, so far as permissible by law, all such rights as we may have against such parties under their warranties in respect of such parts. Our Dealers/ TASC’s will assist the purchaser in taking up the complaint with the respective manufacturers and their decision on the warranty will be final.”

Under the above provision of the warranty the complainant is not entitled to the benefit of warranty though the vehicle was purchased within one year. Further, it is submitted that it is aware by the complainant that the answering OP No.1 took all the necessary action to resolve the problem and as soon as OP No.2 received back the fuel pump from M/s Pioneer Diesel duly repaired the fuel pump and delivered the same to OP No.1 which was delivered to the complainant on 01.11.13. After receiving the vehicle the complainant being satisfied with was pleased to handover a note of satisfaction. The OP No.1 further submitted that M/S. DELPHI TVS DIESEL SYSTEM LTD, M/S. LUCUS INDIA SERVICE LTD  respectively are the manufacturer and supplier of the said fuel injector equipment. Whereas, they were not made parties in this case. besides, there was no manufacturing defect of the FIE and which was due to mishandling by the complainant for which there was leakage of FIE due to rusting and water contamination for which M/S DELPHI TVS DIESEL SYSTEM LTD and LUCUS INDIA SERVICE LTD rejected the warranty and refused to replace and repair the same. Further, at the repeated request by the complainant they agreed to get the same repaired through OP No.2 under goodwill warranty. The OP No.1 is simply a dealer who sold the vehicle and for the aforesaid reason he is not at all reliable. The OP No.1 has not committed any deficiency in service or illegal trade practice as alleged by the complainant.

 OP No.2 in his argument submitted that the proprietor of the OP No.2 Emon Hazarika running a small shop under name and style M/s Pioneer Diesel to earn his livelihood who is a dealer of LUCUS INDIA SERVICE LTD. He has a dealership agreement with LUCUS INDIA SRVICE LTD and as per dealership agreement relationship between the LUCUS INDIA SERVICE LTD and OP No.2 is that of vendor and the purchaser and as such, OP No.2 has no authority to take decision on behalf of the LUCUS INDIA SERVICE LTD. even the company LUCUS INDIA SERVICE LTD has retain exclusive power to decide the matter regarding warranty of parts. The LUCUS INDIA SERVICE LTD was the necessary party in this case because they are the authority to reject or accept the warranty. So unless LUCUS INDIA SERVICE LTD gave any direction to OP NO.2 he cannot suo motto take any decision, his hands are tight to do anything beyond the dealership agreement. OP No.2 further submitted that OP No.3 has some sales and warranty agreement with DELPHI TVS DIESEL SYSTEM LTD for manufacturing FIE for TATA Motors and LUCUS INDIA SERVICE LTD who is servicing agent of DELPHI TVS DIESEL SYSTEM LTD and they have agreement to provide service to purchase TATA Motors in case of damage of FIE. LUCUS INDIA SERVICE LTD is only the servicing agent of DELPHI TVS DIESEL SYSTEM LTD  and as such, OP No.2 has no any authority to take any decision. As soon as the OP No.2 received the vehicle and came to know that FIE was defective they talked with big engineer of LUCUS INDIA SERVICE LTD immediately instructed him over phone to reject the warranty of said defective FIE as because damage of said FIE  was caused due to rusting and water contamination inside the FIE. But the OP No.2 requested LUCUS INDIA SERVICE LTD to give goodwill warranty to the customer and accordingly LUCUS INDIA SERVICE LTD considered the matter and on 28.10.13 sanctioned the goodwill warranty and after repairing the said FIE OP No.2 sent the same to OP No.1 on 30.10.13. Thereafter, the complainant received the said vehicle and also issued a satisfactory letter. OP No-2 had tried his level best to  provide service to the complainant and the delay of the preparing of the FIE was not attributed to OP No.2 and as such, there is no deficiency on the part of OP No-2.

OP No.3 in their argument submitted that the complainant is not a consumer within the meaning of terms consumer. The complainant herself submitted that said vehicle had been used for carrying passengers and there is no doubt that the vehicle was registered as commercial vehicle for commercial purpose. As such, the instant complaint is not maintainable and summarily be rejected. OP No-3 further submitted in the argument that as per warranty policy, all normal maintenance service are to be carried out on paid basis. Hence, the complainant is not entitled to get any warranty benefit for carrying out job work of above mentioned repairs. Further, the record maintained at the job card it appears that the complainant of the vehicle has not maintained the instruction to be followed as per guideline of the service book/user’s manual. There were instances of maintenance fault and operational fault noticed by the OP during free service as well as paid service. The warranty of FIP was rejected by the manufacturer of the FIP due to rusting and water contamination. It is categorically mentioned in the point No.4 of the warranty terms that warranty shall not be applicable on the fuel injection pump and/or  such other parts of the vehicle which are not manufactured by answering OP No-3. But the warranty of the manufacturer of the said parts shall be applicable. However, as per normal business tracks the FIP of the complainant was sent to OP No.2 and the warranty was rejected due to trace of water contamination in the FIP which is self proved that the vehicle was not maintained properly and was negligently handled by the complainant for which the complainant is not entitled to any compensation.  Besides, though the complainant is not entitled  for warranty benefit yet FIP  has been replaced under warranty and the complainant has issued satisfactory certificate confirmed that she was satisfied with the repairs carried out in the vehicle and she has no complaint against M/s TATA Motors Ltd, LUCUS INDIA PVT LTD, M/s Bora Automobile Pvt Ltd and M/s Pioneer Diesel, Tinsukia and also agreed to withdraw the complaint. But why this case is maintained by the complainant is best known to her. Moreover, OP No.3 as a matter of fact and business tracks do not deal with any customer for sale of a new car or vehicles. This OP is not at all liable for any defect arise during the maintenance of the vehicle provided manufacturing defect. There is no manufacturing defect  of the vehicle.

After going through the argument advanced by all the parties it is found that fuel pump i.e. FIE was found leakage for which the complainant approached before the OP No.1 for its repairing within the warranty period whereas, as per argument of all the OPs the complainant is not entitled to get the benefit of warranty since the fuel injector equipment was rusting due to water contamination in the fuel pump and as per clause 4 of warranty clearly mentioned that electric equipment, fuel injector equipment, power steering equipment etc. not manufactured by the OP No.1 and supplied by other parties for which warranty shall not be applicable to those materials. However, the dealer, i.e. OP No.1 will assist the purchaser in taking up the complainant with the respective manufacturer and their decision on the warranty will be final. No doubt the fuel injector equipment was manufactured by other Company than OP No.2, but that does not mean, that the complainant will not get the benefit of warranty. It is not permissible that the OP No.3, the manufacturer of the vehicle will fitted the parts like tyre, batteries, electrical equipment, fuel injector equipment, power steering equipment, A.C. equipment from any Company whether it be defective or nor and if it is defective the purchaser will not get the benefit of warranty which is not permissible. As such, submission made by OP No.3 that they are manufacturer of the vehicle and does not deal with any customer for sale of a new vehicle and will not be liable for any defect arising during maintenance. By saying the above the OP No.3 will not be absolved from its liability and will have to take the responsibility for the manufacturing defect of those parts because the purchaser do not know the other manufacturer except the OP No-3. Any manufacturing defect of the parts of the vehicle will have to be attended by OP No-3. Apart from this OP No.1 who is a dealer of the vehicle will also not be absolved from his liability from any manufacturing defect arising out of the vehicle. When a vehicle is not running properly due to defect of any part/parts it is amount to manufacturing defect if not curable whether be it manufactured by TATA Motors Ltd or by any other Company. Fuel injector equipment is part and parcel of the vehicle and in absence of the said part  the vehicle cannot move. Hence, OP No.1 and 3 cannot be absolved from the liability if the vehicle is found manufacturing defect of any parts not curable. As per norms TATA Motors and also dealers i.e. OP No.1 and 2 are duty bound to assist the complainant after taking up the complainant, with the respective manufacturers. In the instant case, as soon as the complainant approached before the OP No.1, OP No.1 sent vehicle to OP No.2 who is service provider of LUCUS INDIA SERVICE. From the perusal of the argument and the evidence it is found that DELPHI TVS DIESEL SYSTEM LTD is the manufacturer of fuel injector equipment and LUCUS INDIA SRVICE is the service provider. It appears that OP No.2 is working under LUCUS INDIA SERVICE AND has no authority to replace any parts without permission of the LUCUS INDIA SERVICE. On repeated request of the complainant OP No.2 requested to give goodwill warranty to the complainant and goodwill warranty have been sanctioned by the complainant. As soon as, the OP No.2 received the defective fuel pump from LUCUS INDIA SERVICE and after being repaired the same was handed over to the complainant on 01.11.13. While taking delivery of the vehicle the complainant was pleased and satisfied with the repairing of the vehicle and wrote as under – “ I am withdrawing  the court notice issued by my lawyer Debasish Roy” vide Exhibt-10. He also stated in the said Exhibit “ I am fully satisfied with the performance of my vehicle. I do not have any complaint against M/s TATA Motors Ltd, LUCUS INDIA SERVICE LTD, M/S Bora Automobiles PVT. LTD and M/s PIONEER DIESEL, TINSUKIA. Thus, it appear that the complainant after full satisfaction had to withdraw the case after getting delivery of the vehicle or to compromise the case but it was not done for the best reason known to him for which the complainant is not entitled to get any benefit.

In the instant case regarding delay the vehicle was delivered by the complainant on 13.09.13 and immediately after few days there was  Vishwakarma Puja, so during those period working at the workshop of OP No.2 was paralysed. Thereafter, as soon as workshop was open the OP No.2 informed the matter to the complainant stating that the fuel injector equipment was damaged due to rusting and water contamination   and as per norms the warranty does not cover under such a situation. However, OP No.2 at the request of the complainant make correspondence with LUCUS INDIA SERVICE LTD to give goodwill warranty which was ultimately agreed and  sanctioned by the LUCUS INDIA SERVICE LTD. As soon as fuel injector equipment was receive by OP No.2 he replaced the same and handed over the vehicle to OP No.1 and OP No.1 on 01.11.13 handed over to the complainant and in the process more than one month elapse, and the complainant issued a satisfactory certificate with assurance to withdraw the case. besides, the complainant failed to give any evidence as to the loss of his daily earning as claimed for which he is not entitled to claim is daily loss. As such, complainant is not entitled to get any benefit as he prayed for.

In view of the above, the case of complainant is dismissed devoid of merit.