STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (In Appeal No.199 of 2010) Date of Institution: 17.05.2010 Date of Decision : 11.11.2010 M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its branch office at 182/60, Industrial Area, Phase-I, Chandigarh. ……Complainant/Appellant V e r s u s1. TATA Motors, Marketing and Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai-400005. 2. TATA Moors Ltd., Commercial Vehicle Division, Jeevan Tara Building, 5, Sansad Marg, New Delhi-110001. 3. Joshi Auto Zone Pvt. Ltd, through its owner, 84-85, Industrial Area, Phase II, Chandigarh. ....OPs/Respondents. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. MRS. NEENA SANDHU, MEMBER S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Parveen Kataria, Advocate for the appellant along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. P. K. Kukreja, Advocate for respondents No.1 and 2. Sh. Rajesh Verma, Advocate for respondent No.3. (Appeal No.22 of 2010) Date of Institution: 18.01.2010 Date of Decision : 11.11.2010 1. TATA Moors Ltd. through its Manager Legal i.e. Mr. M. S. Pradeep, 5, Jeevan Tara Building, Sansad Marg, New Delhi-110001. 2. TATA Motors, Marketing and Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai-400005. ……Appellants V e r s u s1. M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its branch office at 182/60, Industrial Area, Phase-I, Chandigarh. 2. Joshi Auto Zone Pvt. Ltd, through its owner, 84-85, Industrial Area, Phase II, Chandigarh. ....Respondents. Argued by: Sh. P. K. Kukreja, Advocate for the appellants. Sh. Parveen Kataria, Advocate for respondent No.1 along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. Rajesh Verma, Advocate for respondent No.3. (Appeal No.28 of 2010) Date of Institution: 22.01.2010 Date of Decision : 11.11.2010 Joshi Auto Zone Pvt. Ltd, through its Managing Director, 84-85, Industrial Area, Phase II, Chandigarh. ……Appellant V e r s u s1. M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its branch office at 182/60, Industrial Area, Phase-I, Chandigarh. ……Respondent. 2. TATA Motors, Marketing and Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai-400005. 3. TATA Moors Ltd., Commercial Vehicle Division, Jeevan Tara Building, 5, Sansad Marg, New Delhi-110001. ....Performa Respondents. Argued by: Sh. Rajesh Verma, Advocate for the appellants. Sh. Parveen Kataria, Advocate for respondent No.1 along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. P. K. Kukreja, Advocate for respondents No.2 and 3. PER JAGROOP SINGH MAHAL, MEMBER. 1. The complainant and the OPs have filed these three appeals listed below under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the C. P. Act) against the order dated 16.12.2009, passed by the learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum), directing the OPs to replace the car with a new one with the same/equivalent brand and latest model in that category on payment of depreciation charges of Rs.59,994/-; being 10% of the price of the car. The OPs have also been directed to pay Rs.1 Lac to the complainant as compensation for causing harassment, inconvenience and financial loss and to pay Rs.5,000/- as costs of litigation. The order was directed to be complied with in a period of six weeks from the date of receipt of certified copy of the order, failing which, OPs were made liable to pay interest @18% per annum on the amount of compensation of Rs.1 Lac from the date of filing the complaint i.e. 25.1.2008 till the date of realization. (i) FA No.199/2010 – M/s Sakshi Pharma Distributors Vs. Tata Motors and others. (ii) FA No.22/2010 – Tata Motors Ltd. and another Vs. M/s Sakshi Pharma Distributors and another. (iii) FA No.28/2010 – Joshi Auto Zone Pvt. Ltd. Vs. M/s Sakshi Pharma Distributors and others. 2. Briefly stated the facts are that on 14.8.2007, the complainant purchased TATA Indigo (XL Classic) Dicor Diesel car from OP No.3 i.e. Joshi Auto Zone Pvt. Ltd. for a total consideration of Rs.5,99,940/-, which also included Rs.17,820/- as insurance charges. As per the Owner’s Manual & Service Book, the vehicle and its parts had the warranty of 18 months from the date of its sale. The complainant had also taken extended warranty for a period of four years. As per the complainant, on 17.8.2007, the car suddenly heated up on covering 330 Kms when one of the partners of the complainant firm was going to Dehra Dun. The vehicle was taken to Oberai Moors, authorized workshop of OPs No.1 and 2, where it remained for two days i.e. up to 18.8.2007, where it was temporarily repaired. Finally the vehicle was repaired by OP No.3 on 20.8.2007 with the assurance that there would be no problem in future. As per the complainant, the car was again taken to OP No.3 on 3.9.2007, 4.10.2007 and 29.10.2007 with the same problem of heating up and major repairs were carried out on 27.10.2007. It was alleged that on 12.11.2007 when the complainant went to Yamuna Nagar, again the same problem arose and the vehicle was taken to Metro Motors and some parts were replaced including the thermal plug, which controls the temperature but they failed to rectify the defect completely. The complainant served a legal notice dated 17.11.2007 on the OPs but to no avail. Alleging manufacturing defect in the vehicle and deficiency in service on the part of OPs, the present complaint was filed. 3. In their joint reply, OPs No.1 to 2 admitted the sale of the car in question to the complainant but denied, if there was any problem of the thermostat of the engine. The allegation of there being any problem of heating up of the engine after covering 15-20 Kms has also been denied by the OPs. It was pleaded that the vehicle was repaired to the entire satisfaction of the complainant whenever they brought it to the workshop of OP No.3. These OPs have also admitted the problem of leakage of coolant, for which the vehicle was brought to the workshop of OP No.3 on 29.10.2007 and the same, as per these OPs, was removed. Pleading that there was no manufacturing defect in the vehicle, as alleged by the complainant, and no deficiency in service on their part, these OPs prayed for dismissal of the complaint with exemplary costs. 4. In its reply, OP No.3 also admitted the sale of the vehicle by it to the complainant. It was stated that the vehicle was in perfect condition and defect free. It was stated that the complainant got the warranty extended on his own. As per this OP, the vehicle came to its workshop on 20.8.2007 for demanded repairs. Job Card (Annexure C-5) has also been admitted for normal running repairs. The bringing of the vehicle to its workshop on 3.9.2007, 4.10.2007 and 29.10.2007 has also been admitted by OP No.3. It was stated that the vehicle in question was duly attended to under the conditions of warranty most efficiently. Pleading no manufacturing defect in the vehicle and any deficiency in service on its part, this OP also prayed for dismissal of the complaint with exemplary costs. 5. Both the parties were given opportunity to lead evidence in support of their contentions. 6. On the application moved by the complainant, the learned District Forum permitted the car to be sent to the Director, Punjab Engineering College, Chandigarh for being inspected by a Committee of Senior Automobile Engineers with regard to the manufacturing defect, as alleged by the complainant and a report dated 26.5.2009 was received from the Head, Department of Mechanical Engineering Department, Punjab Engineering College Chandigarh by the learned District Forum, which was placed on record on 29.5.2009. 7. After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide impugned order dated 16.12.2009 as mentioned in Para No.1 of above, which has been challenged by the OPs as well as the complainant through these separate appeals. 8. We have heard the arguments of learned counsel for the parties and have perused the record. 9. There is on record of appeal filed by the complainant, an application seeking condonation of delay of 110 days in filing the appeal. As per the complainant, it received the copy of the impugned order on 27.12.2009. It tried to contact its counsel but due to holidays, he was not available. The further reason for the delay as mentioned in the application is that the mother of Sh. Arvind Sharma, partner of the complainant firm was not well and was being taken to G.M.C.H, Sector 32, Chandigarh for regular checkup and ultimately, she was operated upon on 23.4.2010. It was explained that the complainant was able to contact the counsel on 11.5.2010 and without further delay, they filed the appeal on 17.5.2010, after a delay of 110 day. Sh. Arvind Sharma has filed his own affidavit in support of these contentions. Mere filing of affidavit by him does not help the complainant in proving the factual position of the matter. Neither the medical record pertaining to the treatment of mother of the Sh. Arvind Sharma has been produced to suggest that she was under treatment of G.M.C.H., Sector 32, Chandigarh nor any affidavit from her has been placed on record to support his plea. The complainant slept over from 27.12.2009, on which date it received the copy of the order passed by the learned District Forum. No explanation has been furnished by the complainant to suggest that if its counsel, to whom the complainant was trying to contact, was not available in station due to holidays, what efforts were made by the complainant to contact his counsel telephonically or through mobile phone. It is unacceptable to us to believe the reasons mentioned in the application for condoning the delay. Thus, the appeal filed by the complainant is hopelessly time barred and the same is dismissed as such. Consequently, the appeal is dismissed being barred by time. 10. The learned counsel for the OPs No.1 and 2 has argued that the complainant has not been able to prove if there is any manufacturing defect in the vehicle. According to him, the mere multiple visits made by the complainant to their workshop would not prove manufacturing defect in the vehicle. It is argued that even otherwise, as per the law settled on the point, only defective parts of the vehicle are to be replaced and not the whole vehicle as ordered by the learned District Forum. We do not find any merit in these contentions. There is sufficient evidence produced by the complainant to prove that there was manufacturing defect in the car and the engine heats up after covering 10 to 15 Kms. 11. Annexures C-3 and C-4 are the Job Cards issued by Oberai Motors, Dehradun on 17.8.2007 and 18.8.2007. The contention of the complainant is that he had gone to Dehradun where the engine heated up and the car was taken to Oberai Motors. It is true that nothing has been mentioned in Annexures C-3 and C-4 to prove as to what the defect was but in the absence of any evidence from the OPs, the affidavit submitted by the complainant has to be accepted as correct that the engine of the vehicle heated up and therefore, the vehicle was taken to Oberai Motors. There is then Annexure C-5, the Tax Invoice issued by OP No.3 on 20.8.2007. The Hose (Thermostat to Inlet Elbow) LWB, Collant and Collant Top Up were provided free of cost under the warranty. This Tax Invoice shows that there was problem with the thermostat and the collant was not working to cool the engine. The vehicle was again taken to OP No.3 on 3.9.2007 when two items 9999-1 and 999-6 were sold for use in the vehicle and the complainant was charged Rs.840/- there for. Again on 29.10.2007, the vehicle was taken to OP No.3 obviously with the problem of cooling system. There was defect in Drive Shaft and Poly V Belt, which were replaced and the cooling system was checked. Alternator Belt renew and Transmission Renew were replaced. It also shows that there was problem with the cooling system. On 13.11.2007, the Assembly Water Pump and Gasket (Water Pump) were replaced. The vehicle was taken to the premises of OP No.3 each time but they failed to set the matter right and repair the vehicle to the satisfaction of the complainant. On 29.5.2008, when the vehicle was taken to Metro Motors, the Assembly Thermostat and Rubber Hose were replaced as is clear from Annexure C-19. It, therefore, cannot be said if there was no defect in the cooling system of the engine. It all happened during the initial warrantee period of 18 months. The contention of OP No.3 that they had attended to the problem when ever the complainant brought the vehicle to their workshop and therefore, there was no deficiency in service on its part, is also belied by these facts. 12. Annexure C-16 is the Report dated 7.1.2008. The vehicle was got examined form HI-TEK Motor World, 281, V.P.O Behlana, Chandigarh who reported that there was oil leakage from engine side and the engine was heating up after every 15-20 Kms driving. They noticed rusting in coolant bottle also. It is true that the expert evidence is only advisory in nature and has to be seen in the light of other evidence adduced by the parties. Annexure C-16 is not the only report confirming the allegations of the complainant but during the pendency of the complaint, a request was made by the complainant to get the vehicle checked from some expert/workshop for proper analysis of the defects in the car. As per order dated 16.4.2009, the car was ordered to be sent to the Director, Panjab Engineering College, Chandigarh for appointing some committee of senior Automobile Engineers and to submit a report as to whether there was some manufacturing defect or not in the vehicle. The car was taken to their premises. It was examined by them and a Report dated 26.5.2009 (now marked by us as Annexure C-20) was received from the Head, Mechanical Engineering Department, Panjab Engineering College, Chandigarh and they observed as under: “Please refer to your order dated 16.04.2009 received on 06.05.2009 by hand. The vehicle under question having Registration number CH-04-A 9973, Engine No.14D1COR05GSZW05338 and Chasis No.609172GSZPA8157 and model (make) 1GOXLDICR Classic (INDICO XL Classic) was inspect on 25.05.2009 at 11.00 A.M by the committee. The car was test driven for 17 km i.e. the reading before the test drive was at 25409 km and after the test drive 25426 km. During the test drive and inspection, it was observed that the engine was heated up after it was driven beyond 10 km and that too without the load of air-conditioner. The needle of the meter on the dash board was near the danger zone. The vehicle was stopped for ten minutes and again driven back to Punjab Engineering College and the needle of meter was near the danger zone again. On enquiring from the complainant, it was informed that the problem of heating up of the engine after driving through some distance is occurring from the next day of purchase of the vehicle. This problem is attributed to some defects in the engine which may be due to manufacturing defect, since there was no leakage of water/coolant the required quantity of water/coolant is not reaching in the water jackets around the cylinder.” These two reports sufficiently prove the contention of the complainant that there was a manufacturing defect in the vehicle and it was very difficult to drive the same in this condition. 13. The counsel for the OPs/appellants has argued that this report (Annexure C-20) should not be read in evidence because test was not conducted in their presence nor they were given any opportunity to rebut the evidence. We do not find any merit in this argument. When the case was taken up on 19.3.2009, both the counsel for the OPs/appellants were present and it was adjourned to 16.4.2009 for payment of cost and arguments. On 16.4.2009, none appeared for the OPs and it was on that date that the car was ordered to be taken to Panjab Engineering College. The question of issuing any notice to the OPs in this respect, therefore, did not arise when they were exparte. The case was then fixed for 15.5.2009, on which date again, none appeared for OPs. In the meantime, the application dated 28.4.2009 was moved by the OPs No.1 and 2 for setting aside the exparte order and when they appeared on 29.5.2009, the order was set aside. However, no application was moved on behalf of OP No.3 and the case was then adjourned to 21.7.2009, on which date again, none appeared for OP No.3. It was only on 17.9.2009 that the counsel for OP No.3 appeared and joined the proceedings. No request was made by them to re-examine the vehicle in their presence. The report, therefore, cannot be ignored on any such grounds as alleged by the OPs. 14. The OPs were free to get any other expert appointed to examine the car but they did not. No expert evidence was produced by the OPs to prove that the reports (Annexures C-16 and C-20) are not according to the facts. 15. The two reports coupled with the job cards, referred to above and the statement of the complainant on oath duly proves that there was manufacturing defect in the car. The efforts had been made by the OPs to remove the defect but they could not succeed. 16. It is argued by the learned counsel for the OPs that as observed by Panjab Engineering College, the vehicle had traveled 25904 Kms when it was taken to their premises and therefore, it cannot be said that there was any defect in the vehicle. It may be mentioned that the car was purchased on 24.8.2007 and till 25.5.2009, it covered only 25904 Kms meaning thereby that it was covering only 40 Kms per day. The contention of the complainant is that the vehicle heats up after covering 10-15 Kms and thereafter, the vehicle needs to be cool down and again driven for 10-15 Kms, that is why in 21 months, the vehicle covered only 25409 Kms giving an average of 40 Kms per day. From the mileage also, it is proved that the vehicle was not being used to its optimum use due to the defect in the same. 17. It was argued by the learned counsel for the OPs that only a defective part should be allowed to be replaced and not the entire car. There is no merit in this argument. The OPs have tried to replace one part or the other but they could not remove the defect from the car and even after three years, the engine heats up causing breakdown and consequently, harassment to the complainant. It is, therefore, a case in which the entire car needs to be replaced as ordered by the learned District Forum. 18. The learned counsel for the OPs has also argued that the compensation of Rs.1 Lac ordered by the learned District Forum is on the higher side and should be reduced. On the other hand, the learned counsel for the complainant has argued that he has spent about Rs.22,060/- for obtaining the expert opinion but no relief has been granted to him for the said amount. It is also argued that Rs.59,994/- has been ordered as depreciation, which should not have been ordered by the learned District Forum because it is the complainant who is facing the difficulties whereas the OPs are earning interest or profits on the amount of Rs.5,99,940/- deposited by him towards the price of the car whereas the complainant is spending for the upkeep of the car. 19. We have considered the rival contentions of the parties. 20. A person purchases the car for his comfort but if it becomes an eyesore and if, he cannot even drive it regularly for more than 10-15 Kms or cannot take it outstation, it becomes a source of harassment to the owner and not a source of comfort. The complainant has already parted with a huge amount of Rs.5,99,940/- but has not been able to enjoy the luxury of the car as he had dreamed before he had purchased the same from the OPs. Needless to mention that the car started giving problem immediately after the date of its purchase when it had covered only 330 Kms. We are, therefore, of the opinion that the award of Rs.1 Lac as compensation is not on the higher side especially when the OPs have been given the concession of Rs.59,994/- towards depreciation apart from Rs.22,060/- spent by the complainant on the testing fee etc. The net compensation to the complainant comes only to about Rs.18,000/- or so, which is not on the higher side. We are, therefore, of the view that none of the appeals filed by the parties should be allowed and the impugned order must be maintained as it is. 21. In view of the above discussion, we are of the opinion that there is no merit in any of the appeals and the same are accordingly dismissed. The OPs shall pay Rs.5,000/- as litigation costs to the complainant. 22. Copies of this order be sent to the parties free of charge. Pronounced. 11th November 2010. [JUSTICE PRITAM PAL] PRESIDENT [NEENA SANDHU] MEMBER [JAGROOP SINGH MAHAL] MEMBER Ad/-
STATE COMMISSION(Appeal No.199 of 20010) Argued by: Sh. Parveen Kataria, Advocate for the appellant along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. P. K. Kukreja, Advocate for respondents No.1 and 2. Sh. Rajesh Verma, Advocate for respondent No.3. Dated the 11th day of November, 2010. ORDER Vide our detailed order of even date recorded separately, this appeal along with other two cross appeals bearing No.22 and 28 both of 2010 have been dismissed. (JAGROOP SINGH MAHAL) (JUSTICE PRITAM PAL) (NEENA SAHDHU) MEMBER PRESIDENT MEMBER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Appeal No.22 of 2010) Date of Institution: 18.01.2010 Date of Decision : 11.11.2010 1. TATA Moors Ltd. through its Manager Legal i.e. Mr. M. S. Pradeep, 5, Jeevan Tara Building, Sansad Marg, New Delhi-110001. 2. TATA Motors, Marketing and Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai-400005. ……Appellants V e r s u s1. M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its branch office at 182/60, Industrial Area, Phase-I, Chandigarh. 2. Joshi Auto Zone Pvt. Ltd, through its owner, 84-85, Industrial Area, Phase II, Chandigarh. ....Respondents. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. MRS. NEENA SANDHU, MEMBER S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. P. K. Kukreja, Advocate for the appellants. Sh. Parveen Kataria, Advocate for respondent No.1 along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. Rajesh Verma, Advocate for respondent No.3. PER JAGROOP SINGH MAHAL, MEMBER. For orders, see the orders passed in Cross Appeal No.199 of 2010 titled ‘M/s Sakshi Pharma Distributors Vs. TATA Motors, Marketing and Customer Support and others’ vide which this appeal has been dismissed. Copies of this order be sent to the parties free of charge. Pronounced. 11th November 2010. [JUSTICE PRITAM PAL] PRESIDENT [NEENA SANDHU] MEMBER [JAGROOP SINGH MAHAL] MEMBER Ad/- STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Appeal No.28 of 2010) Date of Institution: 22.01.2010 Date of Decision : 11.11.2010 Joshi Auto Zone Pvt. Ltd, through its Managing Director, 84-85, Industrial Area, Phase II, Chandigarh. ……Appellant V e r s u s1. M/s Sakshi Pharma Distributors through Sh. Arvind Sharma, Partner having its branch office at 182/60, Industrial Area, Phase-I, Chandigarh. ……Respondent. 2. TATA Motors, Marketing and Customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai-400005. 3. TATA Moors Ltd., Commercial Vehicle Division, Jeevan Tara Building, 5, Sansad Marg, New Delhi-110001. ....Performa Respondents. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. MRS. NEENA SANDHU, MEMBER S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Rajesh Verma, Advocate for the appellants. Sh. Parveen Kataria, Advocate for respondent No.1 along with Sh. Arvind Sharma, Partner of M/s Sakshi Pharma Distributors. Sh. P. K. Kukreja, Advocate for respondents No.2 and 3. PER JAGROOP SINGH MAHAL, MEMBER. For orders, see the orders passed in Cross Appeal No.199 of 2010 titled ‘M/s Sakshi Pharma Distributors Vs. TATA Motors, Marketing and Customer Support and others’ vide which this appeal has been dismissed. Copies of this order be sent to the parties free of charge. Pronounced. 11th November 2010. [JUSTICE PRITAM PAL] PRESIDENT [NEENA SANDHU] MEMBER [JAGROOP SINGH MAHAL] MEMBER Ad/-
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | | 
