Date of filing: 16.07.2013.

                                                                                        Date of disposal: 07.02.2014.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:

VIJAYAWADA, KRISHNA DISTRICT

Present: Sri A. M. L. Narasimha Rao, B.Sc., B. L., President

             Smt N. Tripura Sundari, B. Com., B. L.,   Member

   Sri S. Sreeram, B.A., B.Com., B.L.,          Member

Friday, the 7^th day of February, 2014

C.C.No.130 of 2013

Between:

Dharmendra J. Patel, S/o late Jasubhai Patel, Hindu, Aged 50 years, Business at D.No.12-10-45, Convent Street, Vijayawada – 520001.

                                                                                                                        ….. Complainant             

                                                                         And

1.  M/s Tata Motors Ltd., Rep: by its Managing Director, 5^th Floor, One Forbes, Dr. V.B. Gandhi Marg, Fort, Mumbai - 400023.

2.  M/s Concorde, (Subsidiary of Tata Motors Ltd.,) Rep: by its Director, Ground Floor, Golden Edified, Khairatabad Circle, Hyderabad – 500004..

3.  M/s Global Administration Services Pvt., Ltd., Rep: by its Director, Vatika Traingle, 5^th Floor, Sushanth Lok – I, Block No.A, M.G. Road, Gurgan – 122002, Haryana. 

4.  M/s Jasper Auto Services Pvt., Ltd., Rep: by its Director, D.No.54-15-5, Srinivasanagar, Bank Colony, Ring Road, NH-5, Vijayawada – 8.

                                                                                                       . … Opposite Parties.

            This complaint coming on before the Forum for final hearing on 30.01.2014, in the presence Sri Mohammad Aarif, advocate for complainant; Sri M.V. Rama Rao, advocate for 1^st opposite party; opposite parties 2 and 3 are remained absent; Sri B.V.S.R. Prasad, advocate for 4^th opposite party and upon perusing the material available on record, this Forum delivers the following:

O R D E R

(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao,)

1.         The complainant filed this complaint under Section 12 Consumer Protection Act, 1986 seeking direction to the opposite parties to rectify all defects and problems in the vehicle Tata Safari purchased by the complainant, failing which to pay Rs.12,000/- towards estimation cost of work to be done by competent technician to pay Rs.60,000/- towards damages and to pay costs. 

2.         The averments of the complaint in brief are as follows:

            The complainant had purchased a ‘Tata Safari Ex.2.2’ from the 2^nd opposite party dealer of 1^st opposite party on 3.12.2010 for Rs.8,83,433/-.  The vehicle was assigned registration No. AP 16 BU 368.  The vehicle has two years warranty and one year extended warranty from 3^rd opposite party assured by the opposite parties 1 and 2.  The complainant paid Rs.6,400/- as premium for extended warranty up to 31.12.2013 or 1,50,000 Km total run.  The vehicle was giving trouble from the date of purchase.  The complainant’s vehicle came to halt abruptly in running and the complainant had handed over the vehicle to the 4^th opposite party the authorized service provider of 1^st opposite party, on 25.4.2013.  The 4^th opposite party estimated the cost of repairs at Rs.24,500/- and delivery date as 28.4.2013.  Later the complainant approached the opposite party no.4.  He told that the cost of repairs and spare parts will be more than Rs.1,00,000/- and advised the complainant to deposit 50% of the estimate cost.  The complainant approached the 4^th opposite party on 2.5.2013 to find out status of the vehicle and he asked the 4^th opposite party about extended warranty.  The 4^th opposite party told that the franchise of the policy for extended warranty with the 1^st opposite party company is not in force and that they are not bound by that extended warranty.  There was no proper response from the 4^th opposite party.  When approached they replied recklessly.  The 4^th opposite party sent an e-mail 16.5.2013 giving estimation at Rs.1,11,585.55 ps and if the amount is not paid, they would collect Rs.2,500/- towards estimation charges and garage rent of Rs.80/- per day.  It was also informed by the 4^th opposite party that the complainant’s vehicle was retained as there was no scanner to find out the fault.  The complainant visited the opposite parties for more than 15 times since 25.4.2013.  The complainant engaged a vehicle on hire as his vehicle is with the 4^th opposite party spending Rs.2,000/- per day.  He suffered monetary loss and mental agony.  He got a legal notice issued on 27.5.2013 to the opposite parties.  They did not comply with the demands.  So this complaint is filed. 

3.         The 4^th opposite party filed its version denying the allegations made in the complaint and further stating as follows in brief:

            The cars and vehicles manufactured at the plant of the 1^st opposite party are thoroughly inspected for control system, quality system and test drive before passing through factory works for discharge to the authorized dealer appointed on a principal to principal basis for sale of the cars.  The opposite party is supported by excellent authorized service centers with excellent workshops for after sale services of the utility vehicles.  The complaint does not fall within the definition of consumer dispute as there is no manufacturing defect in the vehicle.  The complainant is not a consumer as he purchased the subject vehicle for business purpose and as she used the vehicle for commercial activities.  The vehicle purchased by the complainant requires mandatory servicing and replacement of vehicle components such as air filter, fuel filter at recommended intervals as mentioned in the owner’s manual.  The complainant failed and neglected to follow the guidelines given in the owner’s manual.  The warranty given by the 1^st opposite party is subject to the terms and conditions of the warranty.  The warranty shall not apply if the vehicle or any part thereof is required otherwise than inaccordance with the company standard procedure and shall not apply if the vehicle was subjected to misuse and negligently improper maintenance etc.  The complainant failed to produce any expert opinion from a notified laboratory to prove that the subject vehicle suffers from problems as alleged or has manufacturing defects.  The complainant purchased the utility vehicle on 31.12.2010 from the 2^nd opposite party.  It covered 58,256 Kms by 2.1.2013 i.e., within a period of 24 months.  It has covered approximately 2428 Kms for month.  It shows the roadworthy condition of the vehicle.  The vehicle was brought for free servicing on 4.1.2011 and 27.1.2011.  The vehicle was reported at the servicing center for paid service on 7.3.2011 and for running repairs on 7.4.2011 for free 3^rd servicing on 23.5.2011, for running repairs on 14.6.2011, paid service on 6.9.2011.  The vehicle again reported on 12.11.2011 for problems of cold starting and AC cooling insufficient when r/r alternator assy free of cost and AC system was checked and determined the fault under warranty.  Later the vehicle was brought for 4^th free servicing on 9.1.2012 and at that time service oil filter was checked, steering colum/joint renewed and washing and vacuuming were done.  At that time break pad was replaced, front wheel aligning was checked and adjusted and break disks were removed and break disks were installed on paid service basis.  Later the vehicle was brought on 4.4.2012 for running repairs with complaints of door lock problem, AC switches were not working properly, noisy steering.  They were attended on paid service and steering wheel was replaced free of costs.  Later the vehicle was brought on 27.6.2012 on monsoon campaign for schedule service.  At that time the complaints were engine heating and AC cooling insufficient.  Subsequently the vehicle was reported on 12.9.2012 for 5^th free servicing with problems of insufficient breaks.  Engine oil and filter were changed standard checking was done washing and vacuuming were done all door noises were adjusted and the radiator fan loose noise was corrected on free service basis.  Brake pads were replaced on paid service.  Later the vehicle was reported on 2.1.2013 at 58256 Kms run, the running repairs with complaints of turn signals were not working properly.  The combination switch was replaced free of cost.  The jobs carried out on the vehicle are routine or minor and running repairs.  There was one occasion for accidental repairs.  The opposite parties 1 and 2 were prompt and swift to attend to grievance reported by the complainant under the warranty as and when reported.  By the date of complaint the vehicle is out of warranty and repairs and replacement can be taken up on paid basis only. The complainant is not entitled to replacement of vehicle or refund of price.  The complainant is bound by the terms and conditions of the warranty.  There is no manufacturing defect in the vehicle purchased by the complainant and there is no deficiency in service on the part of the opposite party no.1.  The complainant is not entitled to any relief.  The vehicle was attended to the satisfaction of the complainant as and when reported and the allegation that the complainant suffering mental agony is false.  As there is no fault on the part of the 1^st opposite party the complaint is liable to be dismissed. 

4.         The 4^th opposite party initially remained absent and subsequently Sri B.V.S.R. Prasad, Advocae filed vakalat for 4^th opposite party but no version is filed on behalf of the 4^th opposite party.   

5.         The complainant filed his affidavit as deposition of PW-1.  Exs.A1 to A12 are marked on behalf of the complainant.  The Manager Legal of the 1^st opposite party filed his affidavit and it is received as deposition of DW-1.  No documents are marked on behalf of the opposite parties. 

6.         Heard the arguments advanced by the learned counsel for the complainant and the 1^st opposite party. 

7.         The points that fall for determination are:

1. Whether the complainant is not a consumer and if this complaint is not maintainable in this Forum?

1. Whether there is manufacturing defect in the vehicle Tata Safari purchased by the complainant from the opposite parties 1 and 2 and if there is deficiency in service on the part of the opposite parties?

1. Whether the complainant is entitled to the reliefs asked for?

Point No.1: 

8.         The opposite party had taken the plea that the complainant is not a consumer as he purchased the vehicle for commercial purpose and as he was using the vehicle for business purposes and therefore the complaint is not maintainable in Consumer Forum.  The complainant no doubt refer to his occupation as business in the complaint.  He also stated that he used to go to attend to his commercial activities in the vehicle purchased.  The vehicle was purchased in the personal name of the complainant and not in the name of any business concern.  Merely because the complainant is a businessman, the vehicle he purchased for his personal use cannot be treated as vehicle purchased for business purpose or for commercial activities.  The fact that he was going to the place of business in the vehicle purchased from the 2^nd opposite party cannot lead to an inference that the vehicle is used for commercial purpose and not for personal use.  Therefore we are of the opinion that the complainant is not excluded from the definition of consumer and this complaint is maintainable. 

Point No.2:

9.         The case of the complainant is that he purchased the vehicle in the year, 2010 spending a sum of Rs. 8,83,433/- that from the beginning the vehicle was giving troubles and on or around 25.4.2013 the running vehicle abruptly stopped and then the complainant had handed over the vehicle to the 4^th opposite party, the service provider on 25.4.2013 for effecting repairs.  The 4^th opposite party had issued an estimation under Ex.A8 for a total sum of Rs.1,11,585.55 ps for effecting repairs and supply spare parts.  The complainant raised a claim with the 3^rd opposite party the claim details give in Ex.A10 show that the 3^rd opposite party was intimated on 13.5.2013 about the vehicle giving trouble.  The 3^rd opposite party had rejected the claim on the ground that no coolant has been replaced by the complainant till the date of claim and the complainant has to get the services done and parts replaced as recommended by the manufacturer from time to time to maintain the extended warranty also.  So the 3^rd opposite party rejected the claim on the ground that the complainant did not follow the recommendations and did not replace the coolant in the vehicle.  No other particulars are given by the 3^rd opposite party.

10.       The complainant contends that warranty was given by the opposite parties 1 and 2 under the head of manufacture warranty for two years and extended warranty for one year and that the manufacturer and dealer are also responsible as per the warranty given to repair the vehicle and supply spare parts free of cost when there is defect in the vehicle. The complainant places emphasis on the contents of Ex.A11 to show that the extended warranty was assured without any limitations by the Tata Motors Company also. 

11.       Ex.A11 is brochure issued by Tata Motors with an emblem of 3^rd opposite party relating to extended warranty.  The brochure specifically mentions that keeping with Tata Philosophy of 360º customer satisfaction they bring to the customer extended warranty to ensure the safety and smooth purpose of the vehicle and to give complete peace of mind during the customer’s ownership period.  The explanation what is offered in extended warranty the brochure states it gives extraordinary protection and insures the customer against unforeseen breakdown repair bills.  In the 2^nd sheet of Ex.A11 the Tata Motors had given the extended warranty rate chart showing premium amounts for different vehicles and under different plans.  Safari Dicor 2.2 has 2 year + 2 year warranty plan and 2 year + 1 year warranty plan.  At the bottom of two sheets of Ex.A11 on one side the emblem of 3^rd opposite party appears to have been placed and on the right side the name of Tata Motors service edge.  For enrolment the customers were asked to send e-mail to customercare @ tatamotors.com.  In view of these specific mentions made and details given we cannot accept the contention of the 1^st opposite party that the it has nothing to do with the extended warranty and the 3^rd opposite party has given extended warranty for limited application. 

12.       Ex.A2 is the extended warranty issued by the 3^rd opposite party.  On the 1^st page itself it is stated that it is for the extended warranty and manufacturer’s warranty.  The warranty portion period is noted in Ex.A2 as to one year period after expiry of manufacturer’s warranty or 1,50,000 Kms of cumulative mileage.  There is a list of parts covered by the warranty which include parts of engine, such as cylinder head, fly wheel of ring gear etc.  At the end of 11^th page in Ex.A2 it is mentioned that the warranty shall not cover normal wear and tear, inherent normal deteriorate of the car arising from the actual usage of the car, damage due to negligent or improper operation or storrage of the car.  In the list of definitions given at Page.2 in Ex.A2 mechanical breakdown is defined as the unserviceability of a covered component for a reason other than wear and tear or normal determine causing a sudden stoppage of its function.  When engine and its parts are covered and sudden stoppage of the engine as breakdown is covered by the plocy/warranty, the 3^rd opposite party cannot argue without showing valid reason for rejection of claim. 

13.       Though the 3^rd opposite party had stated in Ex.A10 about the complainant not replacing coolant no details are given.  The report of the mechanic who delivered the car is not submitted.  The nature of damage caused and the details of parts affected are not furnished by any of the opposite parties.  The estimation filed by the complainant would give an indication as to the nature of repairs to be done and part to be replaced.  The 1^st opposite party had stated in the version that the vehicle was brought to the service centre on 2.1.2013 when the vehicle had covered mileage of 58,256 Kms.  On that day the vehicle was brought for running repairs with the complaint of turn signals not working properly and that the combination switch was replaced free of cost.  There after the vehicle appears to have been taken to the 4^th opposite party on 25.4.02013.  The estimation was given by the 4^th opposite party on 29.4.2013.  The 4^th opposite party is the authorized service center of the manufacturer.  The extended warranty is applicable when the vehicle was taken to authorized service center.  The 1^st opposite party as observed above is also responsible for the extended warranty, in view of the assurances given in the brochure Ex.A11.  Therefore it is the duty of the service center to furnish all particulars to the extended warranty provider i.e., the 3^rd opposite party.  The documents basing on which the 3^rd opposite party had rejected the claim are not disclosed and they are not produced by any party.  The complainant states that the 4^th opposite party had insisted for payments of the amount for spare parts and labour charges and insisted for deposit of 50% estimation cost to commence repairs.  The complainant did not pay any amount to the 4^th opposite party.  The complainant has not filed any material to show that there is manufacturing defect.  Irrespective of the manufacturing defects the person giving warranty shall replace the spare parts if the replacement was covered by the warranty.  In the absence of any report of any mechanic or details furnished by the 4^th opposite party we cannot accept the grounds taken by the 3^rd opposite party to repudiate the claim i.e., the complainant not replacing the coolant.  It is to be noted that the 1^st opposite party has not stated in the version that the vehicle required coolant on 2.1.2013 or that the party was advised to provide coolant soon after the date of service. As observed above when there is sudden stoppage and brakedown involving engine parts or parts of the vehicle as entered in Ex.A2 extended warranty, the complainant is entitled to replacement cost and repairs free of cost.  But this entitlement is limited to only such replacement and repairs directly connected to brakedown of the vehicle and not connected to any normal wear and tear or any other aspect excluded by the warranty.  We are actually in short of the material to decide whether the amount of Rs.1,11,885/- i.e., the estimated by the 4^th opposite party under Ex.A8 is entirely covered by the warranty.  We cannot appreciate the conduct of the complainant also in not making any payment to the 4^th opposite party to commence repairs pending claim with the 3^rd opposite party.  Unless the repairs of commenced, the actual repair costs cannot be known.  Therefore we feel it would be proper to direct the complainant and opposite parties 3 and 4 to process further to get the vehicle repaired and to settle the claim afresh.  We feel it reasonable to direct the complainant to make payment of about 25% of the estimation given by the 4^th opposite party so that the 4^th opposite party can commence the repairs.  The 4^th opposite party will be required to get the vehicle repaired in given time and furnish full details to the 3^rd opposite party and the 3^rd opposite party shall decide the claim afresh.  Therefore we feel that to extent there is deficiency in service on the part of the opposite parties 3 and 4 and vicariously on the 1^st opposite party. 

Point No.3: 

14.       In view of the answer on point no.2 and observations made above suitable direction shall be given to the complainant and the opposite parties 1, 3 and 4 to get the vehicle repaired and to settle the claim. 

15.       In the result this complaint is allowed in part and the complainant is directed to deposit a sum of Rs.30,000/- with the 4^th opposite party within 10 days from the date of this order and the 4^th opposite party is directed to repair the vehicle including replacement of damaged/affected parts within 15 days time from the date of deposit and immediately supply the details of parts replaced and repairs effected and their cost to the 3^rd opposite party (corrected as per orders dt.19.2.2014 in I.A.46 of 2014) and copy to the complainant and the 3^rd opposite party (corrected as per orders dt.19.2.2014 in I.A.46 of 2014) shall decide the complainant’s claim afresh within 15 days thereafter.  The complaint for rest of the reliefs is dismissed.  The complainant and opposite parties do bear their respective costs.  This order shall not become enforceable if the complainant failed to deposit Rs.30,000/- with 4^th opposite party. 

Dictated to steno, N. Hazarathaiah, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 7^th day of February, 2014.

PRESIDENT                                    MEMBER                                          MEMBER

Appendix of evidence

Witnesses examined

For the complainant:                                                         For the opposite party:

Dharmendra J. Patel – PW.1                                             The Manager Legal, OP.1

(by affidavit)                                                                          DW – 1,(by affidavit).                                             

Documents marked

On behalf of the complainant:

Ex.A1                         31.12.2010    Photocopy of tax invoice. 

Ex.A2                                     Original copy of extended warranty card. 

Ex.A3             31.12.2010    Photocopies proposal form.

Ex.A4             27.05.2013    Copy of legal notice got issued by the complainant to OPs.

Ex.A5                                     Postal acknowledgement. 

Ex.A6                                     Postal acknowledgement. 

Ex.A7                                     Photocopy of temporary registration certificate.

Ex.A8                                     Photocopy of estimation. 

Ex.A9             28.04.2013    Photocopy of payment receipt. 

Ex.A10                                   Photocopy of claim details.

Ex.A11                                   Original copy of extended warranty offer. 

Ex.A12                                   Original copy of original telephone bill.

On behalf of the opposite parties: - Nil. 

PRESIDENT