DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 257 of 10-06-2010

Decided on : 13-12-2010

Alka Sharma W/o Daljit Sharma, C/o M/s. Bharat Medical Store, Near Old Hospital, Bathinda.

.... Complainant

Versus

1. M/s. Tata Motors Limited, through CV-BU-Dealer, Padam Motors, Bibiwala Road, Bathinda.

2. Regional Manager North, Tata Motors Limited, Regional Office, Jeevan Tara, S. Parliament Street, New Delhi 110 001.

3. Area Service Manager, Tata Motors Limited, Area Service Office, Ist Floor, S.C.O. No. 171-172, Sector 17-C, Chandigarh.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Amarjit Singh Kaushal, counsel for the complainant.

For the Opposite parties : Sh. Sandeep Baghla, counsel for opposite party No. 1.

Sh. Pardeep Sharma, counsel for opposite party Nos. 2 & 3.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The complainant purchased a New Black Tata ACE Magic vehicle bearing Engine No. 2751D105BRZ512291, Chassis No. 445111CRZR12592 on 7.8.2008 vide Invoice No. 0000595 for a consideration of Rs. 2,89,500/- and got it registered vide Registration No. PB-03-4415. At the time of purchase of the said vehicle, the opposite party No.1 on behalf of opposite party Nos. 2 & 3 assured the complainant that in case of any defect occurs in the said vehicle within guarantee/warranty period of one year, the defects will be removed immediately and in case of non-removal of defect, the vehicle will be replaced with new one. Due to fault in the engine, the vehicle started consuming excess oil and got heated many times. On 18-12-2009, the complainant took her vehicle to the workshop of opposite party No. 1 and its mechanic after checking the engine told the complainant that there was fault in the engine and recommended its replacement and accordingly, opposite party No 1 replaced the engine of the vehicle with new Engine set Recon CCL 51685 and charged Rs. 21,000/- as price of the engine and Rs. 3600/- as cost of parts, lubricants and labour charges etc., from the complainant on 18-12-2009. The complainant alleged that in this way, the opposite party has admitted that there was manufacturing defect in the vehicle as the engine became stalled after running only 54162 Kms. After replacement of the engine, the vehicle started consuming excess engine oil and engine got heated many times. The opposite parties kept on charging the service charges from the complainant whenever he visited the workshop of the opposite parties but despite the replacement of the engine, the defects could not be removed. On 17-03-2010, the complainant had taken her vehicle to the workshop of the opposite parties and complained that after replacement of engine, the vehicle was again giving same problems relating to excessive consumption of oil. The mechanic of the opposite parties again told her that there is manufacturing defect in the vehicle which cannot be removed. The mechanic of the opposite parties seeing no other alternative filled engine oil free of cost. The complainant has also served legal notice to the opposite parties on 08-04-2010 but the opposite parties had given no response and refused to replace the vehicle or to refund its full price.

2. The opposite party No. 1 has filed separate written statement and has taken objection that complainant is not consumer as defined under Section 2(1)(d) of the 'Act' as she is plying her vehicle for the commercial purposes and has got registered so by the District Transport Officer. On 16-12-2009, the engine of the vehicle in question was beyond the period of warranty i.e. 6 months and as such, the complainant cannot file this complaint. The complainant had plied the vehicle for more than 54162 Kms on 16-12-2009 and as such, there could not be any manufacturing defect. The vehicle had been purchased on 7-8-2008 and the complaint regarding engine had been made after running it more than 54000 Kms which is beyond warranty. The complainant had not properly maintained the vehicle and the problem in the engine had accrued due to the bad shape of the Air Filter which was not got regularly cleaned by the complainant and the photographs to this effect have also been clicked at the time of repair of the engine of the vehicle. The opposite party No. 1 had pleaded that vehicle manufactured by opposite party Nos. 2 & 3 is subject to warranty terms and conditions which had been supplied to the complainant and the present allegations of the complainant that the vehicle could be replaced are not mentioned in the warranty conditions. The engine has warranty of 6 months or 18000 Kms which ever was earlier and the vehicle had a warranty of one year or 36000 Kms which ever was earlier and on 16-12-2009, the vehicle had run more than 54000 Kms and even at that time, the period of warranty had already been elapsed i.e. for six months/one year and vehicle was beyond the terms of warranty. The complainant had never lodged any complaint regarding the manufacturing defect at the time of services on 20-10-2008, 26-01-2009, 26-02-2009, 24-04-2009 and 15-05-2009. When the vehicle was brought on 16-12-2009 with the complaint of starting problem, it was duly explained to the complainant that vehicle was beyond the warranty and accordingly necessary repair and replacement of the part of engine was done to the entire satisfaction of the complainant and the complainant had been duly charged the requisite amount for the replacement and repair of the vehicle in question which had been voluntarily paid by the complainant without any protest knowing the fact that vehicle was beyond the warranty. Thereafter the vehicle had been brought by the complainant on 04-02-2010 for the first service, on 26-03-2010 for the second service of the replaced new Recon engine of the vehicle and the services were given to the due satisfaction of the complainant. The complainant had failed to avail the 3^rd service violating the terms and conditions. The opposite party No. 1 had denied that on 17-03-2010, the mechanic of opposite party No. 1 admitted the manufacturing defect in the vehicle in question and it is a concocted story cooked by the complainant. The complainant never visited opposite party No. 1 on 17-03-2010.

3. The opposite party Nos. 2 & 3 pleaded in their separate written statement that the vehicle of the complainant met with an accident before 24-04-2009 i.e. within eight months of its purchase and she has not availed mandatory 4^th and 5^th free services. No complaints were made relating to any manufacturing defect within the period of warranty which expired on or before 7.8.2009. The opposite party Nos. 2 & 3 submitted that a manufacturing defect is much more than an ordinary defect and the onus to prove manufacturing defects in the vehicle in question is squarely on the complainant and they have taken support of the law laid down by the Hon'ble National Commission in the case titled Rakesh Gautum Vs. Sanghi Brothers & Ors. RP No. 40 of 2006 decided on 4^th May, 2010 (NCDRC) and in the case titled Sushila Automobiles Pvt. Ltd., Vs. Dr. Birendra Narain Prasad & Ors. RP No. 1652/2006 decided on 7-5-2010 (NCDRC), wherein it has been observed that “complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input.” The opposite party Nos. 2 & 3 have also reproduced Section 13(1)(c) of the 'Act'. They have further submitted that vehicle sold to the complainant was of highest quality and the complainant has taken delivery of the vehicle, after Pre-Delivery Inspection and to her entire satisfaction and dully complies with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the vehicle. The relationship between the opposite parties is on principal to principal basis. The opposite party Nos. 1 & 2 cannot be held liable for any independent act and omission, committed by the opposite party No. 1. Thus, for the acts of one opposite party, another opposite party could not be held liable. For this, they have taken support of the law laid down by the Hon'ble Supreme Court and Hon'ble National Commission in the case titled Indian Oil Corporation Vs. Consumer Protection Council, Kerala & Anr. (1994) 1, Supreme Court Cases 397 and in case of Maruti Udyog Limited Vs. Nagender Prasad Sinha & Anr. II(2009) CPJ 295 (NC) respectively.

4. The parties have led evidence in support of their respective pleadings.

5. We have heard the arguments at length and have gone through the record and perused written submissions submitted by the parties.

6. The learned counsel for the complainant submitted that the vehicle in question started giving problem like consuming excess engine oil, heated several times for which she has complained to the opposite parties and the engine was replaced with a new one. The complainant paid Rs. 21,000/- for the engine. After replacement of the engine, the vehicle again started giving problem. The complainant has requested for the replacement of the vehicle as it had manufacturing defect.

7. The learned counsel for opposite party No. 1 submitted that complainant is not consumer. For this, he has taken support of 2010(2) CPR page 282 (NC); 1996(2) CPJ page 190 (NC);2007(1) CPJ page 204 (NC); 1996 (3) CPJ page 485; 1998(1) CPJ page 40 and 2008(4) CPJ page 390. The complainant has alleged manufacturing defect in the vehicle but he has not placed any expert evidence on file to show that there was any manufacturing defect in the vehicle. The complainant had visited number of times to the opposite parties prior to 16-12-2009 and never complained of manufacturing defect. The vehicle had already run approximately 56000 Kms when the alleged problem in the engine was detected. The vehicle had already run 31084 Kms on 15-05-2009. The complainant has not placed any documentary evidence that there was any manufacturing defect in the vehicle. In this regard, the opposite party No. 1 has taken support of 2010(3) CPJ page 235 (NC); 2009(1) CPJ page 220 (NC); 2009(4) CPJ 43 (NC), 2008(3) CPR page 200 (NC); 2008 (4) CPR page 478 (NC); 2007(1) CPJ page 2 (NC); 2007(1) CPJ page 312; 2003(2) CPJ page 132 and 2007 (1) CPJ page 204 (NC). The learned counsel for opposite party No. 1 further submitted that as per terms of warranty Ex. R-15, the vehicle had warranty of one year or 36000 Kms whichever was earlier but in the present case, the vehicle had run 56000 Kms and the period of one year had already elapsed from the purchase of vehicle i.e. 7-8-2008. The vehicle was beyond warranty and accordingly the engine had been replaced with Recon engine. The estimate cost of the repair had been disclosed to the complainant vide Job order sheet Ex. C-18. The vehicle had been repaired to the satisfaction of the complainant and satisfaction note had been signed at the bottom of Ex. C-18. The original price of the Recon engine is approximately 91,150/- as per the rate list of opposite party Nos. 2 & 3 and Rs. 21,000/- had been charged as an exchange. At the time of 1^st and 2^nd service of the Recon Engine (replaced new engine), vide Ex. C-19/Ex. R-7 and Ex. C-20/Ex. R-8 the complainant had never pointed out any manufacturing defect rather he had duly signed the satisfaction note below Job Sheet Order. The complainant had never reported about any defect in the engine rather she had opted for the service and got it serviced twice. The learned counsel for opposite party Nos. 2 & 3 submitted that the complainant had not placed any cogent evidence regarding manufacturing defect in the engine. For that they have taken support of the law laid down by the Hon'ble Apex Court in the case titled T Pherumal Vs. Union of India AIR 1995 (SC) 468 wherein it has been observed :-

   “Facts must be based either on evidence or an admission, they cannot be found to exist from a mere contention by one side especially when they are expressly denied by the other.”

   The learned counsel for opposite party Nos. 2 & 3 further submitted that complainant had concealed material facts that vehicle met with an accident before 24-04-2009 i.e. within eight months of its purchase and she has not availed mandatory 4^th and 5^th Free services and no complaints were made relating to any manufacturing defect within the period of warranty which expired on or before 7-8-2009. The learned counsel for opposite party Nos. 2 & 3 also submitted that complainant has not purchased this vehicle for self-employment rather she has been using this vehicle for commercial purposes and as such, she is not consumer. The husband of the complainant is using the vehicle in question in his business and he is owner of M/s. Bharat Medical Store at Ludhiana. The vehicle was purchased exclusively for day-to-day use of the business. For this, the complainant has taken support of the law laid down by the Hon'ble National Commission in the case titled Meera Industries Vs. Modern Constructions R.P. No. 1765 of 2007 decided on 22-05-2009. The learned counsel for opposite party Nos. 2 & 3 further submitted that the onus to prove manufacturing defects in the vehicle in question is squarely on the complainant. The learned counsel for opposite party Nos. 3 & 4 had submitted that excessive oil consumption is not manufacturing defect and for this, they have taken support of the law laid down by the Hon'ble National Commission in the case titled Swaraj Mazda Ltd., Vs. PK Chakappore & Anr 2004 NCJ 177 (NC). Moreover claim of refund of price of engine and labour charges are beyond warranty. For this, he has taken support of the law laid down by the Hon'ble Supreme Court in the case titled Maruti Udyog Ltd., Vs. Sushil Kumar Gabgotra & Anr. 2006(II) CPJ 3 (SC).

8. The vehicle is in the name of Alka Sharma, complainant. A perusal of Registration Certificate Ex. C-12 reveals that no such permit has been taken by the complainant to ply it as a Taxi or as commercial vehicle. Moreover, the opposite parties have failed to prove by placing cogent and convincing evidence that the vehicle was being plied by the complainant for commercial purposes. Hence, the vehicle in question is not being plied for commercial purpose and complainant is consumer.

   Vide Job Sheets Ex. C-5 to Ex. C-7, the complainant took her vehicle to the opposite party No. 1 for the free services of the vehicle. The engine of the vehicle was replaced vide Ex. C-8 and the opposite party No. 1 has charged Rs. 21,000/- as exchange price of the engine and issued a bill Ex. C-9 for Rs. 3600/- for other accessories. The complainant has alleged in para No. 5 of his complaint that opposite party No. 1 has charged Rs. 21,000/- as cost of new engine and Rs. 3600/- on account of cost of parts, lubricants and labour charges etc., from the complainant against law and facts, forcibly and illegally. The opposite party No. 1 has changed the engine of the vehicle free of cost and has charged Rs. 21,000/- on account of exchange of engine. The opposite parties have placed on file Ex. R-15 which are general terms and conditions of warranty. According to condition No. 3 “Any part which is found to be defective and is replaced by us under the warranty shall be our property.” When the opposite party No. 1 has replaced the engine, there was no question of charging Rs. 21,000/- as the engine of the vehicle has been giving problems since its purchase. Moreover, the opposite party No. 1 had changed the engine with new engine because of some manufacturing defect in it. The change of engine itself proves that there was manufacturing defect in the engine. Where there is any sort of manufacturing defect in any part of the vehicle, the opposite parties are liable to change that part of the vehicle free of cost. Moreover, the problem in engine was continuous. The delay was on the part of the opposite parties which led to the expiry of the warranty. Hence, they have charged Rs. 21,000/- from the complainant against law. As per their own aforesaid condition No. 3, they are bound to replace the defective part under the warranty and can keep the defective part with them but it is no- where mentioned in this condition that complainant would pay difference of amount.

9. The complainant has not placed on file any such document/expert opinion to prove that there is manufacturing defect in the vehicle in question as a whole and also has not produced any evidence to prove that excessive oil consumption is a manufacturing defect. Thus, no direction can be given for the replacement of the vehicle or for refund of the price of the vehicle.

   With utmost regard and humility to the aforesaid authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts.

10. In view of what has been discussed above, this complaint is accepted against opposite party No. 1 with Rs. 10,000/- as cost and compensation and dismissed qua opposite party Nos. 2 & 3.. The opposite party No. 1 is directed to refund Rs. 21,000/- with interest @ 9% P.A. to the complainant from the date of deposit till realisation.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

13-12-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member