DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.339/2018
Mrs. Swati Jamwal
w/o Mr. Dinesh Jamwal
R/o 15-D, CPWD Colony
Vasant Vihar
New Delhi-110057. .…Complainant
VERSUS
M/s tata Motors Limited
4th Floor, Ahura Centre-82
Mahakali Caves Road MDC
Andheri East
Mumabi-400093
Maharashtra.
Through its Managing Director
M/s Pahwa Auto world
A-2/5 Safdarjung Enclave
New Delhi
Through its Manager. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Anita Sharma along with complainant.
Present: Adv. A.K. Mishra for OP.
ORDER
Date of Institution:16.11.2018
Date of Order : 19.11.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking replacement of the defective car/refund of the cost of the car with interest @18%; Rs.10,00,000/- as compensation and Rs.1,00,000/- as litigation cost. OP is Tata Motors Limited and OP-2 is Pahwa Auto World.
- It is stated by the complainant that purchased Tata Tigor 2 XZ(O) 1.05 D from OP-2 on 01.05.2017. The RC is annexed as annexure-A. Complainant had taken an auto loan of Rs.6,85,000/- from SBI for the purpose and paid Rs.1,25,000/- as down payment.
- It is stated from the very beginning i.e within three months of purchase, complainant has been facing lot of problem in driving the car owing to manufacturing defects. It is stated that the first service was done on 02.06.2016 when the complainant plied the car on hills it was found that brakes of the car were not functioning and was having a cracking sound. It is stated that horrible sound was coming from the car brake and there was chances of accident or mishap however, the complainant managed to come back. The invoice raised of the first service is annexure-C.
- It is further stated that the complainant took the car to the authorised service station where the brake pads were replaced at the second service dated 19.08.2017. Copy of the said invoice is annexure-D. It is stated that even after the second service and change of brake pads there was no improvement and the brake continued to make noise at the time of third service i.e. on 27.01.2018, OP-2 replaced door shell and metal welding repaired and painting work was done. Copy of the invoice dated 27.01.2018 is annexed as annexure-E. It is stated that the complainant had to face brake noise issues every now and then and has to spend her time and energy in taking the car to the service station.
- It is alleged by the complainant that assurance was given to the complainant after every repair that the would be functioning smoothly but it did not happen and the noise continued to come. When the complainant took the car on 31.01.2018 when the brake pads were again changed. Copy of the invoice dated 31.01.2018 is annexed as annexure-F.
- It is further stated that even after the said repair the brake issue was not resolved and there was persistent noise coming from the car and this time timing belt, brake pads were changed when the complainant took his car to the service station. Copy of the invoice dated 14.04.2018 is annexure –H.
- It is stated that the sound of the brake was like a ghost and in this regard another invoice dated 20.04.2018 is annexed as annexure-I when the complainant took the car for service.
- Complainant again took the car on 03.05.2018 and 22.05.2018 for air conditioning, door striker, timing belt, door winder, copies are annexed as annexure-J (colly). It is stated by the complainant that on account of the vehicle in question having manufacturing defect complainant wrote number of emails to the OP which are annexed as annexure-K (colly).
- Reply has been filed on behalf of OP-1 i.e. Tata Motors Ltd. who has stated that material facts have been suppressed and has relied on the judgment passed in S.P. Chengalvaraya Naidu Vs. Jagannath (1194) 1 SCC 1 and Hon’ble NCDRC in Bhagwan Das Aggarwal Vs. Telco.
- It is stated by OP-1 that the complainant was negligent in maintaining the vehicle in question as per the terms and conditions of warranty. It is stated that the vehicle met with an accident in April 2018 which is clear from annexure-H whereby the major parts were replaced. It is stated that as per Clause 5 of terms and conditions of the warranty, the warranty becomes null and void in the event when there is no adequate maintenance and servicing.
- It is further stated by OP-1 that no expert opinion has been placed on record by the complainant to prove the manufacturing defect and in this regard OP has placed on reliance on Dr. K. Kumar Advisor (Engg.), Maruti Udyog Ltd. Vs. Dr. A. S. Narayan Rao I (2010) CPJ 19 (NC) and Bharathi Knitting Co. Vs. DHL World Wide Express Carrier (1996) 4 SCC 704.
- It is further stated by OP that the relationship between OPs is on ‘principal to principal’ basis and OP-1 cannot be held liable for any act/omission of OP-2. In this regard, reliance has been placed on IOC Vs. Consumer Protection Council, Kerala (1994) 1 SCC 397 and MUL Vs. Nagender Prasad Sinha II (2009) CPJ 295 (NC) and various other judgments.
- It is not denied by OP-1 that the brake pads were replaced when the vehicle was brought for second service however, it was free of cost. It is further stated that negligent use of brake can damage the brake pads for which OP-1 cannot be liable. It is further stated that on 28.01.2018 vehicle was brought for accidental repairs. It is further stated that vehicle was brought on 04.04.2018 (Annexure-G) for minor problems and repair jobs were done on ‘free of cost’ basis. Vehicle was brought for accidental repairs on 14.04.2018 (annexure-H). It is further stated that brake pads were replaced on ‘free of cost’ basis under AMC as is seen from annexure-I.
- OP has again relied on other judgments to state that there is no evidence to prove manufacturing defect and has relied on Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra (2006) 4 SCC 644. It is stated that warranty terms are binding on both the parties and that the complainant is not entitled for replacement or refund.
- OP-2 was served but did not file any reply.
- In his rejoinder, complainant has reiterated that OP-2 has failed to deliver the vehicle in question without any defect. It is stated that vehicle in question suffered from manufacturing defect from the very beginning and the brake issue was a persistent problem.
- It is further stated that there was no accidental claim claimed by the complainant on account of any major accident. Complainant was regular in maintaining the vehicle as per recommendation in the owner’s manual book and complainant had been visiting the service station because of the brake pad issue which is authenticated by the invoices issued by the OP-1 and other repair work.
- It is further stated by the complainant that since the chrome handles of the vehicle showed rust and to avoid spreading of rust to other parts of the vehicle complainant was advised to have the door of the vehicle painted and therefore the engineers of OP-1 painted all the four doors.
- Complainant has reiterated the averments made by her in the complaint. As far as the expert opinion is concerned complainant has relied on the expert opinion of “Europa Car Care” wherein it is clearly stated that brake was an issue from the beginning till date.
- Complainant has further stated that though there is no contract between the complainant and OP-2 but the complainant is a consumer who has purchased the vehicle from the authorised dealer of OP-2 on the basis of trust of the brand of Tata Motors. Complainant has further stated that she had purchased another vehicle of the make of OP-2 in the year 2004 which never gave any problem and therefore she again purchased the vehicle in question from OP-2 make however, this time she felt cheated. It is stated that the timing belt of the vehicle was changed on 03.05.2018 which is generally done under extreme circumstances. It is further stated replacing free of charge such parts and replacing a number of times establishes the fact that it was a manufacturing defect.
- It is stated that liability falls either on OP-1 or OP-2 to replace the vehicle or refund the price along with the compensation for causing mental pain and suffering to the complainant. Complainant has relied on the judgment passed by the Hon’ble Suprme Court in Indian Oil Corporation Vs. Consumer Protection Counsel, Kerala (1994) 1 SCC and Maruti Udyog Ltd. Vs. Nagender Prasad Sinha & Anr. II (2009) CPJ 295 (NC), the Hon’ble Apex Court in Hind Motors India Limited Vs. Balwinder Singh Sood RP No.3298/2004, Hind Motor India Ltd. Vs. K.K. Kalsi RP No.3307/2004, Hindi Motors India Ltd. Vs. Bhupinder Singh RP No.3299/2004 and Hindi Motors India Ltd. Vs. Marwah Parmod Kumar RP No.3315/2004. She has also placed on reliance on judgment of Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Ors. Decided on 07.05.2010
- It is further stated by the complainant that the judgment of Sushila Automobiles Pvt. Ltd. Vs. Dr. Birender Narayan Prasad decided on 07.05.2010 and Classic Automobiles Vs. Leela Nand Mishra (2010) CPJ 235 (NC) does not apply to the present case. OP has relied on the judgment passed by the Hon’ble Supreme Court in Tata Motors Ltd. Vs. Auto Paulo Vaz Civil Appeal No.574/2021 wherein it was settled that no liability could be imposed on the manufacturer for any act/omission of the dealer.
- This Commission has gone through the entire material on record. Complainant has placed on record the invoices relating to the purchase of the car as also the servicing done on 02.06.2017, second invoice dated 19.08.2017 (6143kms) wherein the brake pads were replaced free of cost by the OP. It is noticed that the brake pads were changed even before third free service. The third free service took place on 27.01.2018 (12,722 kms). In the third free service door shell was replaced and metal sheet was painted which the OP claims was because of accident however, the tax invoice placed on record records it as being “within warranty” and nothing was paid for this.
- It is only on 31.01.2018 that the service request is recorded as accident when the kilometres covered by the car was 12,725 kms where the complainant has paid Rs.14,750/- as fitment charges. Again on 04.04.2018 when the vehicle has run only 15,877 kms. timing belt was changed which is also recorded as ‘within warranty’. Another invoice dated 14.04.2018 records fitment charges as FOC and another fitment charges of Rs.31,049/- was paid by the complainant and the service request type was recorded as ‘PDI’. The vehicle was taken again on 20.04.2018 and the service request type as ‘campaign’ and again the brake pads are changed free of cost when the vehicle has covered 16050 kms. Brake pads were again checked on 03.05.2018 and the service records is mentioned as ‘running repairs’. The tax invoice dated 22.05.2018 wherein the service request recorded as run repairs and the vehicle as 17912 kms. It is noted in the job sheet “Remove and install brake disc (each side)” which was again done free of cost.
- Complainant has written to the OP complainant about the brakes through emails including 23.04.2018 complained about the same issue constantly complaining thereafter the various emails are on record. The brake pads again replaced on 28.07.2018 when the vehicle has completed 21384 kms.
- It is further seen that OP has not replied to the expert opinion placed on record by the complainant.
The brake pads were changed even before the vehicle completed 20,000 kms. It is also seen some painting work was done by OP-1 without any sufficient explanation or any charge being taken from the complainant. The facts mentioned i.e replacing free of charge brake pads and replacing them a number of times and that too when the vehicle has merely completed 20,000 kms. establish the fact that the vehicle was suffering from manufacturing defect. This is a case of res ipsa loquitor where the things speak for itself and no further expert opinion is required.
We hold OP-2 guilty of unfair trade practice and direct OP-2 to pay a sum of Rs.2,00,000/- to the complainant for the harassment caused to the complainant in view of the fact that the brake pads were constantly changed. This payment of Rs.2,00,000/- is to be paid by OP-2 within three months from the date of pronouncement of the order failing which OP-2 would be liable to pay interest @5% per annum on the said amount.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
