PRESENT: Sh.Aman Behl, Adv. for the Complainant

None for OPs. No.1 & 2.

Sh.Gagan Aggarwal, Adv. for OP No.3.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant had purchased a TATA Indica V2 DLG car bearing Regn.No.CH-04-A-9878, Chassis No. 605121 JSZPC 8933 in September, 2007 from OP No. 1 for Rs.3,75,550/- (Annexure C-1) and had got the said car financed from State Bank of Patiala, Sector 8, Chandigarh, wherein it was duly hypothecated in favour of the Bank. It was alleged that since the very first day, he had noticed white smoke emitting out of the exhaust pipe of his car, which was categorically pointed out to OP No.1, who assured him that the same would be removed during first service of the car. Furthermore, he had also noticed seal leakage in the car, vibration when the car was at the speed of 60 Km/hr and noise of the car belt, which defects were duly brought to the notice of OPs during the first service, but even after first service the problem of emission of white smoke and vibration continued, which when pointed out to the OPs, the OPs assured him that these were post-service problems and would get removed in due course of time. It was further alleged that at the time of second service also, the Complainant again pointed out the said defects, but the defects were not removed by the OPs. In October, 2008 when he got the third service conducted in the workshop of OPs, he noticed an ‘Oil sign’, ‘check engine’ and ‘battery +-‘ sign on the car screen indicating that the car engine was not in proper working condition. He immediately informed the OPs about the same, upon which it was told that the said defects would be removed for which he had to leave his car for 3-4 days in the Workshop, which the Complainant did. Pursuant to which the OPs replaced the Assy. Turbo Charger (KP-35) of the car (under warranty) without any reason and the Complainant had to incur Rs.1,535/- towards the same. But even after replacement of the above component, the vibration sound still continued and the white smoke continued to emit from the car exhaust. Copy of the job card and the invoice receipt dated 6.11.2008 is at Annexure C-2 & C-3 respectively. It was also alleged that since the car did not function properly and gave lot of problem while starting as well as in running condition, he again informed the OPs clearly mentioning his grievances wherein the OPs again asked him to bring back the car to their Workshop so that the problem could be taken car. The OPs committed to him that the defects would be removed and the car would be available in running condition within 4-5 days. As per the directions of the OPs, he took the car to the workshop and left it there. After 5 days, when he contacted the OPs, he was informed that the car was being repaired and that it would take another 7 days. After 7 days, when he again contacted the OPs, he was again assured that his car would take more time since there were certain technical defects in the machinery. During all this period, he had to compulsorily hire pre-paid taxis for his business tours to New Delhi and elsewhere and also could not take his family for marriages, outstation trips and holidays etc. When after 3 weeks, he did not receive his car, he visited the workshop and to his utter surprise, his car was lying unattended. Having left with no other alternative, he even personally visited the OPs and requested them to expedite the repair since he was suffering in his business because of non-availability of his car in extreme cold conditions. Finally, on 29.12.2008, after number of requests, reminders, telephone calls and personal visits, OPs handed over the car to the Complainant. This was accompanied with a long invoice and the car engine was replaced (under warranty) by the OPs. The Complainant had to agonizingly bear the amount of Rs.1,118/- owing to unnecessary billing by the OPs. A copy of the invoice receipt dated 29.12.2008 is Annexure C-4. It was further alleged that even after this, the defects were not removed and the problems in the car got further aggravated. He again took the matter with the OPs, but they blatantly refused to render any service saying that they had changed the engine of the car and the car was perfectly all right and in working condition. A legal notice dated 7.1.2009 (Annexure C-5) was also served upon the OPs, but to no avail. Hence this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs No. 1 & 2 in their joint reply, while admitting the factual matrix of the case, pleaded that the problems so mentioned by the Complainant were duly shown in the job card and there existed no problem, as alleged, so the rectification of the same does not arise. There was no problem of emission of white smoke and vibration. It was asserted that the sign of oil check engine, battery etc. would appear as and when the engine oil was emptied or oil was emptied due to the running of the vehicle. The vehicle was attended to vide Annexure C-2 & C-3 efficiently and effectively under the conditions of warranty to the most satisfaction of the Complainant and there existed no such problems, as agitated by the Complainant in the complaint. The vehicle had come for normal running repairs of the vehicle at 29539 Kms. It was denied that there was any problem of white smoke emanating from the car exhaust; the answering OPs had ever asked the Complainant to bring back the car to the Workshop and the Complainant left his car in the Workshop, as alleged. It was admitted that the vehicle came to the Workshop of the OPs at 31939 Kms as per job card dated 27.12.2008 (Annexure C-4) for normal running repairs of the vehicle and the same was attended to under the conditions of warranty and to the most satisfaction of the Complainant. It was also denied that the answering OPs had unnecessarily charged Rs.1,118/- as per invoice dated 27.12.2008. Whatever was applicable under the conditions of warranty, was replaced.  There was no manufacturing defect in the vehicle or in the engine. The vehicle in question was a perfect merchantable automobile without any manufacturing defect. The engine could become defective due to the driving habit of the driver and the same was replaced under the conditions of warranty without admitting any manufacturing defect. While denying the receipt of legal notice, all other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]        OP No. 3 in its reply pleaded that defects as alleged in the complaint were never pointed out to it at any time or at the time of first service of the car. The warranty shall not cover wear and tear and shall not apply to the normal maintenance services like oils and fluids changes, head lamps focusing, fastener retightening, wheel balancing, tyre rotation, adjustment of value clearance, fuel timing, ignition timing and consumables like bulbs, fuel filters and oil filters etc. It was pleaded that the Complainant had concealed the fact that the vehicle in question had met with a major accident in the month of February, 2008 and again, in the month of May, 2008, which was evidence from Job Card dated 11.2.2008 (Annexure R-3/1) and Job Card dated 29.5.2008 (Annexure R-3/2). The Complainant had not placed on file any expert opinion showing that the vehicle in question was bearing the defects as alleged in the complaint. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

5]        Parties led evidence in support of their contentions.

6]        The learned Counsel for the OP No. 1 and 2 was present in the initial stages of the case, but on the date of the final arguments, he was not present and hence, the case was heard in his absence. 

7]        We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainants / OP. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 3 (OP No. 1 & 2 being absent). As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]   The basic facts of the case in respect of the Complainant having purchased a TATA Indica V2 DLG car bearing Regn.No.CH-04-A-9878, Chassis No. 605121 JSZPC 8933 in September, 2007 from OP No. 1 for Rs.3,75,550/- and that subsequently, the said car had gone to OP No. 1 for certain repairs and replacements against job cards placed on record, have all been admitted.

ii] The only grievance of the Complainant against the OPs, especially OPs No. 1 & 2, has been that the car in question sold by OPs to him was defective from day one. He has alleged that white smoke was emitting out of the exhaust pipe of the car and also there was a problem of oil seal leakage in the car, in addition to the problem of vibration noise when the car was moving at the speed of 60 Km/hr. and finally, there was noise in the car belt. The Complainant says that all these defects were duly brought to the notice of the OPs during very first service, but even after three car services, the car had still defects, as he had noticed the ‘Oil sign’, ‘check engine’ and ‘battery +-‘ sign on the car screen, which meant that the car engine was not in proper working condition. All these defects continued to exist and could not be rectified by the OPs and ultimately, the OPs replaced the Assy. Turbo Charger of the car within the warranty period of 18 months i.e. on 04.11.2008 i.e. within a period of 14 months from the month of purchase of the car. The cost of the Assy. Turbo Charger (KP-35) was Rs.33,049.78P. This amount was not charged from the Complainant, because the car was within the warranty period. But even after the said replacement, the problem of vibration sound, as well as emission of white smoke continued (Annexures C-2 & C-3). Thereafter, the car was taken to the OPs again several times, but the defects in question were not removed, which resulted in a lot of inconvenience and financial losses to the Complainant.

iii] All these allegations of the Complainant have been denied by the OPs saying that there is no problem of emission of white smoke and vibration sound. It is further asserted that the sign of oil check engine, battery etc. would appear only as and when the oil was short or battery is low. The vehicle in question had only come to them for normal repairs at 29539 Kms and later at 31939 Kms. As per Job Card dated 27.12.2008 (Annexure C-4), all the repairs were done to the entire satisfaction of the Complainant. The OPs have denied the existence of any type of manufacturing defect in the car. However, it has admitted that the engine could become defective due to driving habits of the driver and the same was placed under conditions of warranty without admitting any manufacturing defect and the car in question was a perfect merchantable automobile, without any manufacturing defect, whatsoever.  

iv] OP No.3 has also taken similar stand, as in the case of OP No. 1 & 2, saying that the warranty shall not cover wear and tear and shall not apply to the normal maintenance services like oils and fluids changes, head lamps, wheel balancing, tyre rotation, adjustment of value clearance, fuel and ignition timing and consumables like bulbs, fuel filters and oil filters etc. OP No. 3 has alleged that the Complainant had concealed some major facts about the case in that the car in question had met with major accidents twice in the month of February, 2008 and again, in the month of May, 2008, which is evidenced from Job cards dated 11.2.2008 (Annexure R-3/1) and Job card dated 29.5.2008 (Annexure R-3/2), which were not placed on record by the Complainant and lastly, the Complainant has not placed on record any expert opinion showing that the vehicle in question was having certain defects, as alleged in the complaint and especially, the manufacturing defect. All the pleadings made by the Complainant have been controverted by OP No.3 in their written statement/reply.   

v]  A very close scrutiny of the facts and figures in the present case reveals that the main allegation of the Complainant against the OPs is that after the Complainant purchased a TATA Indica V2 DLG Car sometime in September, 2007, the car developed some major defects right from the beginning and despite several visits to the OPs in connection with servicing the car and removal of other defects, there has been no improvement in the functioning of the car and the same remains defective till date. In support of its case, the Complainant has made reference to job cards at Annexure C-2 to C-4. In Annexure C-2, the Complainant has made the complaint in respect of the following: -

“Engine Oil Leakage, Wheel Alignment, Wheel Balancing, Belt Noise Alt., Diesel Filter rep., Washing etc.”

    Annexure C-3, which is the Tax Invoice dated 04.11.2008, shows that the OPs had replaced the Assy. Turbo Charger (KP-35) at a cost of Rs.33,049.78P, for which the Complainant has not been charged on account of the fact that the car in question was still in the warranty period. In addition to replacing the said part, which constitutes a major part of the car engine itself, some other minor repairs and change of oil etc. was also done. On the same lines, the job card at Annexure C-4, dated 27.12.2008, also indicates certain items, which are basically a part of the normal servicing of the car and some of the parts were also replaced without charging anything on account of the existence of the warranty period. One major part known as RECON INDIGO 475 TC BARE ENGINE costing Rs.27,794.67P, was again changed by the OPs free of cost and the Complainant had paid only a nominal sum of Rs.1119/- for other petty jobs. Earlier, on 04.11.2006, the Complainant had paid a sum of Rs.1535/-, again for certain small items. 

vi] The main plea of the Complainant in the whole case against the OPs has been that whereas the brand new car which he had purchased from the OPs was carrying a warranty of 18 months, starting with 19.09.2007, but the car developed major defects on 04.11.2008 i.e. within a period of less than 14 months, due to which a major part of the Engine Assy. had to be changed when the car had done 29539 Kms. and subsequently, in the next one month, another major component of the engine had to be replaced on 27.12.2008, when the car had done 31939 Kms. All this happened within a period of 15 months from the date of purchase of the car. Despite of these replacements and various car services done by the OPs, the car still remained defective, as it continued to emit white smoke and there was vibration noise when it was running at the speed of 60 km/hr. As per the Complainant, all this shows that the car in question had an inherent manufacturing defect, due to which it could not run defect free even for a period of 14 months from the date of its purchase; whereas, the warranty period was 18 months.  

vii] All the above allegations of the Complainant have been controverted and denied by the OPs by saying that there was no problem of emission of white smoke and vibration noise in the car. Further, the different signs of ‘Oil sign’, ‘check engine’ and ‘battery +-‘ etc. only appear when the engine oil was short or the battery was low and these problems being very small, were attended to promptly by the OPs. OP No. 1 & 2 further says that the car in question did come to them twice at 29539 Kms and 31939 Kms respectively and the same was attended to under the conditions of warranty to the entire satisfaction of the Complainant. For all the items repaired or replaced, covered by the warranty, no amount was charged from the Complainant and the Complainant had to pay some small amounts only against those items, which were not covered by the warranty or for the items, which were basically consumables.

viii] OP No.3, who is the manufacturer of the car, in it reply, had brought out certain facts, which were not disclosed by the Complainant in his complaint. As per OP No. 3, the Complainant brought his car to the Workshop of OP No. 1 & 2 on 11.2.2008 and subsequently, on 29.5.2008. On both the occasions, the car had come to the OPs for accidental repairs, as a result of which, major accidental repairs were carried out by the OPs and the Complainant had to pay almost Rs.44,000/-, in which the major component each time was labour charges, which shows that the car had suffered major damage and needed very extensive repairs to make it fully functional. When the Complainant came to the OPs on 04.11.2008 and a major part of the Engine Assy. Known as Assy. Turbo Charger (KP-35) was replaced at a cost of Rs.33,050/-, the car had already met with an accident on an earlier date i.e. 11.2.2008. On the same lines, when the car came to the OPs on 27.12.2008, when another major part of the engine called RECON INDIGO 475 TC BARE ENGINE was replaced at a cost of Rs.27,795/-, which had already met with an accident for the second time on 29.05.2008. The contention of the OPs is that as per Clauses 6 & 7 of the terms and conditions of the warranty, which are quoted below, the warranty in question does not remain in operation in case of accident:- 

“6. This warranty shall not cover normal wear and tear or any inherent normal deterioration of the car or any of its parts arising from the actual usage of the car or any damage due to negligent or improper operation or storage of the car. This warranty shall not apply to normal maintenance services like oils and fluid changes, head lamps focusing, fastener retightening, wheel balancing, tyre rotation, adjustment of value clearance, fuel timing, ignition timing and consumables like bulbs, fuel filters and oil filters etc……….”

“7. This warranty shall be null and void if the car is subjected to abnormal use such as rallying, racing or participation in any other competitive sport. This warranty shall not apply to any repair or replacements as a result of accident or collision.”

Further, as per the OPs, as a matter of courtesy and gesture of goodwill, they replaced the major parts of the engine of the car, totally free of cost, although they were under no obligation to do so, as the car had already met with two accidents prior to changing the engine and these replacements had to be done only as a consequence of the accidents and not otherwise. 

ix]  Another major issue raised by the Complainant against the OPs is in respect of inherent manufacturing defect in the Car from day one of its purchase on 19.9.2007. The Complainant has not produced any expert report from an Automobile Engineer or an approved/recognized Automobile Association, in support of his allegation. In the absence of either an expert report or a proper laboratory test, or an authenticated report from an approved/ recognized Automobile Association, it is not possible to prove that there is any manufacturing defect in the car. In support of its contention on the same point, OP No. 3 has quoted some evident authorities, which are as under: -

“In the case of M/s E.I.D. Parry (India) Ltd. Vs. Baby Benjamin Thushara I (1992) CPJ 272 NC had observed that “…………..we are not satisfied that the above observations of the State Commission are correct. If the Closet was of sub-standard quality, then the defect could be proved only by laboratory test. In laboratory, it could be found if the material used in manufacture of the Closet in question was of sub-standard quality or not or it could with stand a weight upto 465 Kgs as claimed by the manufacturer before the State Commission. Without such a test, no conclusion can be reached about the quality of the material used in the manufacture of the disputed Closet. Therefore, the State Commission was not right in not sending the pieces of the broken Closet for laboratory analysis or test.”  

In the case of H.M.T. Limited V/s Jubeda Bee, (P) 2000 (1) Page 54, in which the Hon’ble M.P. SCDRC, Bhopal, has held as under:-

“complaint filed by the Complainant against alleged defects in the Tractor purchased by the Complainant. Allowed by District Forum. On appeal, the Hon’ble SCDRC held that since no expert’s evidence adduced, therefore, manufacturing defect not established.”

Apart from above said authorities quoted by the OPs, Section 13(1)(c) of the Consumer Protection Act, 1986, also further clarifies the matter as under:-

“where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect……….”

x]  In view of the above said authorities, as well as Section 13(1)(c) of the Consumer Protection Act, 1986, the contention of the Complainant that the vehicle in question had an inherent manufacturing defect, does not hold water and cannot be accepted at its face value.

8]        As per the detailed discussions and thorough analysis of the entire case, we are of the considered view that the allegations of the Complainant against the OPs are baseless, devoid of merit and carry no weight whatsoever. Not only that, the Complainant has not been able to establish or prove any of the allegations leveled against the OPs, but also, he has tried to conceal certain major facts of the case, which, obviously, had an adverse bearing to him. The vehicle in question had met with accidents twice, resulting in the major repair and replacements & all these things were cleverly concealed by the Complainant and not disclosed in the present complaint, which means that the Complainant has not come to this Forum with clean hands. It is further quite clear that the replacement of the engine of the car was necessitated only on account of the accidents, which took place causing extensive damage to the car. Still, the OPs were gracious enough to replace the entire engine assembly free of cost, although it was not covered by the terms and conditions of the warranty, solely on the ground that the warranty period had not expired till then. It is also quite clear that the OPs were under no obligation to replace the engine with a new one free of cost, as it is not covered by the terms & conditions of the warranty, but still they did it. In view of these facts and circumstances, the present complaint deserves rejection. We, therefore, dismiss the same. However, the respective parties shall bear their own costs.

9]      Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

01.12.2009                                      

‘Dutt’

So, alleging deficiency in service on the part of OPs, this Complaint has been instituted, seeking reimbursement of Rs.3,75,550/- being the sale price of the TATA Indica car along with 9% per annum from the date of purchase till realization. The Complainant has also claimed Rs.2.00 lacs as compensation on account of damages due to mental pain and suffering at the hands of OPs; Rs.50,000/- on account of financial loss due to hiring of taxi cabs for business and family, besides, Rs.5,000/- on account of legal expenses.