Punjab

StateCommission

A/11/1487

Ajay Singh - Complainant(s)

Versus

M/s Cargo Motors Pvt. Ltd. - Opp.Party(s)

Shiv Kumar

09 Mar 2015

ORDER

 

 

                                                                  

PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

 

First Appeal No. 1487 of 2011

 

                                                 Date of institution:   05.10.2011

                                                Date of decision    :  09.03.2015

 

Ajay Singh son of Sahdeep Singh resident of V & PO Chelet, PS Amb, District Una (HP)

                                                                                                                              …..Appellant/complainant

                                     

Versus

 

1. Cargo Motors Pvt. Ltd., near Ambey Valley Bharwain Road, Hoshiarpur through its General Manager.

2. Tata Motors, Passengers Car Business Unit, Unit No. 305, 3^rd Floor, Tower-B, Signature Tower, South City I, National Highway 8, Gurgaon, Haryana through its Chairman cum Managing Director.

                                                           ..Respondents/opposite parties

 

First Appeal against the order dated 07.09.2011 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur.

Before:-

 

          Hon’ble Mr. Justice Gurdev Singh, President

          Sh. Baldev Singh Sekhon, Member

          Mrs. Surinder Pal Kaur, Member

 

Present:-

 

    For the appellant    :    Sh. A.K. Garg, Advocate

    For respondent no.1:   Sh. Avtar Mohan Jit.Singh, Advocate

    For respondent no.2:   Sh. P.K.Kukreja, Advocate        

         

 

BALDEV SINGH SEKHON, MEMBER

 

          This appeal has been filed by the appellant/complainant (hereinafter referred as ‘Complainant’) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against the order dated 07.09.2011 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur (in short, “District Forum”) in CC No 152 of 01.06.2010, vide which his complaint against the respondents/opposite parties (hereinafter referred to as ‘OPs’) was dismissed.

2.                Briefly stated, the facts of the case are that the complainant purchased Tata Indigo, CSLX car bearing Chasis No. MAT-6071619 WP 48081, Engine No. 4751DT14NOZP00785, on 18.12.2009 from OP No. 1 for Rs. 4,63,000/-, that was having registration No. HP-19C-1001. It was pleaded that after its purchase, when complainant took the car to his village, he experienced that it climbed hilly road with great difficulty in first gear, emitted dense smoke, engine created peculiar noise and its pick up was slow.  There was problem in its turbo as it was giving excessive acceleration of its own.  On reaching his village, he informed Sh. R.K. Sharma and Sh. V.K. Sood of OP No. 1 telephonically.  Next day, Mr. V.K. Sood took the car to the workshop of OP No. 1 at Hoshiarpur with the help of a mechanic.  Even at that time, car started with great difficulty after repeated efforts and its engine made screeching noise.  OP No. 1 promised to remove the defects or to replace the car with a new one.  After some days, when he again took the car to his village on the asking of official of OP No. 1, he found that the same problems were existing in the vehicle, which were due to major inherent manufacturing defect in it. It was pleaded that OP No. 2 is the manufacturer of the vehicle and was liable to indemnify the complainant.  Again, while going to Shimla, alongwith his family members, the complainant reached Shimla with great difficulty as the problems were still persisting.  OP No. 1 tried to remove the defects but all in vain.  It initially did not make any entry in the job card, but subsequently the job cards dated 19.01.2010, 15.02.2010, 19.02.2010 and 22.02.2010 were supplied to him.  Entries thereof reflected that the car was brought to workshop by towing with another vehicle.  Though OP No. 1 alleged that its engine was replaced with a new one on 22.02.2010, but actually the same was not done.  Job card dated 22.02.2010 reflected that there were 17 major defects in the car.  On 09.03.2010, Mr. V.K. Sood of OP No. 1 gave in writing to the complainant that vehicle in question was still under repair but he refused to give the job card on the pretext that same cannot be taken out of workshop.  It was further pleaded that the mechanic of OP No. 1 opened the head and detached its engine a number of times, but the defects in the car could not be rectified. The said mechanic even told the complainant that car cannot be set right by repairs.  History of the car, since its purchase, showed that most of the time it remained in workshop and further job cards prove that major manufacturing defect was persisting, which could not be removed. In the complaint filed before the District Forum, directions were sought to the OPs to refund Rs. 4,63,000/-; being the price of the defective car, besides payment of compensation amounting to Rs. 2 lacs on account of mental harassment and humiliation, alongwith interest @ 18% per annum till realization. 

3.       Upon notice, OP No. 1 filed written reply denying therein the allegations made by the complainant.  It was admitted that the said vehicle was purchased by complainant as per invoice and that it was hypothecated with M/s Tata Motors Finance Limited. It was further admitted that the vehicle was brought to the workshop of OP No. 1 for checking, but denied that any promise was made to replace the car. As per warranty, the liability of OP No. 1 was for only repairing and servicing the vehicle.  It was denied that there was any inherent manufacturing defect in the car or that the same was having 17 main defects.  As per the job card dated 19.02.2010, the vehicle was brought to the workshop with the ‘starting problem’ and the ‘pickup’ problem.  The tax invoice was prepared on 22.02.2010, whereby 17 items were replaced.  During the said repairs, turbo as well as its engine were changed.  The other items mentioned in the tax invoice did not constitute any major defects. When the vehicle was brought to its workshop on 03.03.2010, there was some starting problem which occurred due to use of substandard fuel.  The defective parts i.e. Injector and Fuel Injector Pump (FIP) were sent to Lucas; the manufacturer of the pump, which were replaced under warranty.  It was also denied that the mechanic told the complainant that defects in the car cannot be set right by repairs. The OPs never told the complainant that there was an inherent or manufacturing defect in the vehicle.  It was further pleaded that the car was ready for delivery to the complainant since April, 2010 but, in sptie of repeated requests made on telephone and through various reminders, the complainant has failed to take its delivery.  Dismissal of the complaint was prayed.

 4.      OP No. 2 filed a separate written reply, taking preliminary objections with regard to maintainability of complaint, suppression of material facts and the complainant not being its consumer.  On merits also, the allegations made by the complainant were denied.  It was pleaded that the vehicles manufactured by it are passed through stringent quality checks and road trials and these are marketed after these are approved by Automotive Research Association of India.  It was further pleaded that there was no manufacturing defect in the vehicle. The vehicle in question was under hypothecation, so the complainant was only the beneficiary and not its owner.  It cannot be held liable for any independent act and/or omission conducted by the other parties.  The cars are not recommended to be driven in the first gear on the hills as the transmission of the gear depends upon the speed of the vehicle.  In case, the vehicle is driven in first gear, it would deteriorate the condition of its engine.  As such, the vehicle is required to be driven in proper gear as per the speed of the vehicle.  It was also denied that complainant experienced any of the alleged problems.  The complainant brought the vehicle to OP No. 1 on 19.01.2010 with problem of noise in the engine.  On inspection, it was observed that its alternator belt was broken due to bad and negligent driving.  However, the same was replaced under warranty as a goodwill gesture and to maintain good customer relationship.  Thereafter, complainant again brought the vehicle on 15.02.2010 with same starting problem.  It was observed that the complainant was using adulterated and low quality fuel due to which certain problems occurred in the FIP. It was evident from the letters dated 04.03.2010 and 06.03.2010, issued by OP No. 1, that car was damaged due to use of sub standard and low quality fuel by complainant.  From the documents it cannot be concluded that the vehicle suffers from any defect and rather the complainant had been using the vehicle in negligent manner. Denying all other allegations, dismissal of the complaint was prayed. 

5.       Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, dismissed the complaint of the complainant.

6.       Aggrieved by this order, the complainant has come up in appeal on the grounds that immediately after its purchase, the car started giving the problem and the same was repeatedly taken to the workshop of OP No. 1.  As per job cards, which were handed over by OP No. 1 to him, there were 17 defects in it.  It was further submitted that there were major inherent defects in the engine of the car which could not be rectified. The OPs have failed to prove on record that the said car was under good working condition.  The only plea taken by OP No. 1 is that it had even replaced its engine alongwith turbo on 22.02.2010.  It was submitted that In fact, OP No. 1 did not replace the engine at all, as alleged.  Learned District Forum has wrongly observed that the engine of the vehicle was replaced by OP No. 1, and therefore, there was no deficiency in service on the part of the OPs. He had been suffering in spite of the fact that he had made entire payment for the vehicle through his financer, for which he had to pay instalments regularly to the financer.  It was submitted that till the filing of the complaint, he was without a car. The complainant even produced one engineer who proved that there were defects in the engine of the car, but the learned District Forum discarded his evidence.  District Forum also failed to take into consideration the documents produced by the complainant, including the job cards of the OPs, which showed that engine of the car was still defective. It was further submitted that the OPs have manipulated certain documents to show that the engine of vehicle was replaced. Even from those documents, it is not proved that OPs actually replaced the engine. Documents Ex. OP-7, OP-8, OP-9 and OP-10 have been wrongly relied upon by learned District Forum; which do not show that the engine was ever sent for replacement.  Moreover, sending the engine does not mean that it was replaced with a new engine.  Had the engine been replaced by manufacturer, there must have been the change in its ‘engine number’.  The OPs have no where mentioned serial number of the new engine in any of the documents proved by them.  Allowing of the appeal and acceptance of the complaint in toto after setting aside the impugned order was prayed.

7.       On the other hand, counsel for the OPs submitted that learned District Forum has reached the correct conclusion by relying upon the evidence produced on record.  There is no merit in the appeal and the same be dismissed.

8.       We have thoroughly gone through the pleadings of the parties, carefully perused the evidence on record and heard the Learned Counsels of the parties on their behalf.

9.       The specific grievance of the complainant is that immediately after the purchase, of Tata Indigo CSLX car, he experienced that the vehicle climbed the hilly-roads with difficulty in the first gear, emitted dense smoke and its engine was creating peculiar noise.  Further the pickup of the car was slow. It was also alleged that there was problem in the Turbo as it was giving the excessive acceleration of its own.  The matter was brought to the notice of Sh. R.K. Sharma and Sh. V.K. Sood of OP No. 1 telephonically and thereafter the car was taken to the workshop of OP No. 1.  It is further the case of the complainant that when he took his car to Simla on the asking of official of OP No. 1, the problems were still found existing and that various job cards and the correspondence made by the complainant with OP No. 1 showed that there were 17 major defects.  Inspite of the repair done by OP No. 1 in its workshop, the said defects still continued.  It is the specific allegation of the complainant that through OP No. 1 has claimed that the engine of the vehicle was replaced with a new one, but in fact, the same was not actually done and the vehicle was having same old engine problems and was still emitting heavy smoke.  To substantiate his allegations, the complainant has proved on record the job card dated 19.01.2010 as Ex. C-2, job card dated 15.02.2010 as Ex. C-4 and tax invoice dated 22.02.2010 as Ex. C-5.  In the job card Ex. C-2, the defect reported by the complainant is mentioned as ‘screeching noise from the engine’. This defect was attended to by the OPs by replacing broken alternator belt.  Similarly Job card Ex. C-4 shows that the vehicle had ‘starting problem’ on 15.02.2010.  In the tax invoice dated 22.02.2010 (Ex. C-5) as many as 17 items have been shown as replaced, which also included replacement of ‘Turbo Charger’ as well as ‘the engine’ of the vehicle. OP No. 1 has specifically contended that the engine of the vehicle alongwith Turbo Charger was replaced on 22.02.2010, vide job card dated 19.02.2010 (Ex. OP-4).  Careful perusal of this job card reveals that the vehicle was having problem of ‘cold starting’ and ‘poor pick up’. Under the column of ‘repair details’, it is mentioned that the engine was removed and new engine was installed.  Similarly, it is mentioned that Turbo Charger was changed.  However, the complainant has categorically challenged this contention of OP No. 1.  To rebut the allegations of complainant that the engine of vehicle was not changed, OP No. 1 has proved on record Excise Challan-Cum-Sales Invoice dated 29.01.2010 issued by Tata Motors Ltd. as Ex. OP -5.  Careful perusal thereof reveals that a “bare engine (Euro III) (TCIC), having part No. 2790001990133”, was despatched by OP No. 2 to OP No. 1 on 29.01.2010.  Even though a number of other details are mentioned in it, but the serial number of the engine, so despatched is missing. OP No. 1 has also proved other documents i.e. Settled PCR (Ex. OP-7); detail of wooden box number vide which the alleged removed engine of vehicle of the complainant was sent to OP No. 2 (Ex. OP-8); Courier receipts dated 16.06.2010 Ex. OP-9; covering letter sent while despatching the removed engine (Ex. OP -10), to confirm that the defective engine of the vehicle was actually replaced on 22.02.2010. From the documents Ex. OP-8 to OP-11, it is indicated that one bare engine EURO-III (TCIC) was returned by OP No. 1 to OP No. 2 on 10.06.2010.  Even though the Chassis numbers, part number, PCR number etc of the alleged removed engine have been given in documents Ex. OP-7, OP-8 & OP-11 but serial number of removed engine is not mentioned. It is further noted that in the Acknowledgment Details (Ex. OP-11) under the ‘part description’ ‘assy bare engine (TCIC), ‘Indica Vista’ is mentioned conveying thereby that the removed engine, in fact, was of some Indica Vista vehicle whereas vehicle of complainant is ‘Indigo CS’.  OP No. 1 has not even conveyed the serial number of alleged newly installed engine to the complainant so as to incorporate that number, in place of old engine number, in the Registration Certificate of the vehicle; which was mandatory.  Absence of serial number from the documents pertaining to, the new engine received by OP No. 1 from OP No. 2 and the serial number of the old engine returned by OP No. 1 to OP No. 2 creates serious doubts about the replacement of the engine.  It is surprising to note that OP No. 2 has neither pleaded, nor lead any evidence to the effect that the engine of the car in question was ever demanded by OP No. 1 or that a new engine was supplied by it to OP No. 1 for replacement of defective engine of the vehicle of the complainant.   
There is not even remote reference of any such replacement in the affidavit (Ex. R-1) of Mr. M.S. Pardeep of OP No. 2.  He has not even referred to any repair done on 22.02.2010, vide job card dated 19.02.2010 (Ex. OP-4) much less the replacement of engine.  It cannot be comprehended that OP No. 1 replaced engine without the consent of the manufacturer specially when it has been categorically pleaded by OP No. 1 that as per warranty, its liability was only for repairing and servicing. Furthermore in the Excise-Challan-cum Sales invoice dated 29.01.2010 (Ex. OP-5) issued by Tata Motors Ltd., the bare engine despatched by it was supplied against ‘order dated 28.01.2010 REF. SAP-CargHo-HI-0910-00086’,. This order, against which the said new bare engine was supplied to OP No. 1, has not been proved by OP No. 1; which would have confirmed whether the despatched engine was actually demanded by it for the vehicle of the complainant or against some other defective vehicle.  It is further noticed that there was no such occasion for OP No. 1 to place such an order on OP No. 2 on 28.01.2010, as the engine of the vehicle of the complainant was not, at all, declared defective for replacement at that time.  OP No. 1 deliberately withheld best evidence, which would have confirmed whether engine was actually replaced or not. The silence of OP No. 2 about the alleged replacement of engine by OP No. 1 in its written reply or in the evidence of Mr. Pardeep further establishes the fact that no such replacement of defective engine was actually done as alleged by OP No. 1. Once it is proved that defective engine was not replaced by OP No. 1, which was required to be replaced, it can be easily concluded that defects in the vehicle, as pointed out by complainant, were still persisting.

10.               OP No. 1 has also contended that the vehicle was brought to its workshop after the replacement of engine on 02.03.2010 and the defect found in the Injector and FIP was attributed to the use of substandard quality of diesel by complainant and both defective parts were got repaired from LUCAS Indian Services Ltd by OP No. 1 within the warranty, vide job card dated 19.03.2010 (Ex. OP-12), though the subsequent correspondence produced by OP No. 1 revealed that the vehicle was lying repaired in its workshop and the same was not being deliberately collected by complainant. However, during the pendency of the complaint before the District Forum, learned counsel for OP No. 1 stated that the car was parked in the workshop of OP No. 1 and same be got inspected from the expert; namely, Satinder Kumar, whereupon an order dated 14.09.2010 was passed by District Forum directing said Satinder Kumar to inspect the car, in question, at the premises of OP No. 1 on 17.09.2010 and to submit the report supported with affidavit with regard to the defects, if any in the vehicle.  The vehicle was inspected and test driven by said Satinder Kumar in the presence of representative of OP No. 1 on 17.09.2010 and said expert demanded documents pertaining to the repairs of the vehicle, which were not supplied to him, due to which no report was submitted by him before District Forum.

11.     OP No. 1, has contended that no defect was observed by expert during inspection done on 17.09.2010.  However said expert in his affidavit (Ex. C-2) stated to the contrary by deposing that the engine of the vehicle was emitting more smoke than normal. Similarly another expert; namely, Manjul Sharma, owner of a Garage at village Mawa Kaholan, has given his opinion that the engine of the vehicle was seized due to failure of alternative belt sliding screw for tensioner breaking into two pieces, leading to breakage of alternator belt, which caused damage to timing cover and timing belt leading to disturbing the timing of the engine; thereby resulting in seizure of the engine damaging inlet valve, exhaust valve, cylinder head assembly, guide valves and pistons. He further deposed that the cylinder head of the engine was repaired and replaced one. In view of the observations of the experts and in view of the fact that engine of the vehicle was not replaced, it is evident that the vehicle, in question, was still having inherent manufacturing defect in it which could not be set-right in spite of its repeated repairs by OP No. 1

12.     Accordingly, the appeal of the complainant is allowed and the impugned order of the District Forum is set aside and OPs are directed to replace the vehicle of the complainant with a new one or to refund its price i.e. Rs. 4,63,000/- alongwith interest @ 7% per annum from the date of filing of the complaint till realization. This order be complied within one month from the date of receipt of copy of the order.

13.     The arguments in this case were heard on 23.02.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.

14.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                                 (JUSTICE GURDEV SINGH)

                                                                              PRESIDENT

 

                                                                  (BALDEV SINGH SEKHON)  

                                                                               MEMBER

                                                                    

                                                             (MRS. SURINDER PAL KAUR)

                                                                                MEMBER

March 09, 2015

Rupinder