BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 380/2005 Filed on 17/11/2005

Dated : 16..08..2011

Complainant:

Ajit Haridas, 42 Vrindaban Colony, Thiruvananthapuram – 695 004.

(By Adv. Valsala Sadanandan)

Opposite parties:

1. M/s. Tata Motors Ltd., Passenger Car Division, 27^th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai – 400 005.

2. M/s. Tata Motors Ltd., Passenger Car Service Division, K-Block, Pimpri, Pune – 411 018.

3. M/s. Focuz Motors. NH-Kovalam By-pass Road, Muttathara, Thiruvananthapuram – 695 008.

    

(Opp. Parties 1 to 3 by Adv. V. Krishna Menon)

4. M/s. Kulathungal Motors Ltd., Service Centre, Kulathungal Junction, Kuravankonam, Kowdiar – P.O., Thiruvananthapuram.

(By Adv. Nair Ajay Krishnan)

This O.P having been heard on 30..06..2011, the Forum on 16..08..2011 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The case of the complainant is as follows: The complainant, Ajit Haridas had purchased a new Indica DLE Euro II Car (KL 01 T 5936, Engine No.475 10102 J22 P45376, Chasis 600 132 J22 P45291) in October 2000 from authorized dealer of M/s. Tata Motors Ltd (M/s.Focus Motors, Kochi formerly named M/s. Benz Motors). The car was always maintained as per user's manual and serviced at the manufacturer specified intervals in their authorised dealer workshops. The complainant serviced the vehicle at specified intervals in the dealer workshop of Tata Motors Ltd., and used specified lubricants for top-up exactly as per user manual. On 27/6/2005, the complainant took the vehicle to the company's dealer M/s. Kulathungal Motors, Thiruvananthapuram for 55,000kms preventive maintenance service (Job card 22431). The complainant reported about engine oil consumption which he had done for several services, from at least 25,000kms onwards. On several previous service occasions, the complainant reported fast deterioration of quality of oil in the engine. The service centre reported extensive engine damage and recommended “major engine kit” replacement. In addition to other repairs to clutch and starter, the total estimated bill was Rs.32,000/-. The complainant was shocked on hearing the amount. The engine damage is a manufacturing defect. During the warranty period the authorised service centre did not disclose the defect of the engine. The complainant requested the service centre for carrying out the engine repair free of cost. But the company did not consider the request of the complainant. The engine was reported as requiring complete overhaul, which the complainant permitted and paid the amount of Rs.33,450/- towards the invoice numbers 2457, 4000 and 4134 dated 30/6/2005. The complainant had taken extended warranty of 36 months for the car, that further the engine of the car is warranted for 50,000kms. In previous services the complainant reported high engine oil consumption. The same complaint was repeated during the service also. But the service company failed to check the engine for wear and rectify it before the warranty expired. It is submitted that in the type of product, the above said defects are common. It is the company's responsibility to check the faults during routine warranty service. There is absolutely deficiency of service. The complainant gave written complaint to both the manufacturer and their authorised dealer but they have not carried out the repair free of cost The complainant is working as Scientist at Regional Research Laboratory, Thiruvananthapuram. Due to the frequent repairing of the car he had to face many difficulties. A damage to the tune of Rs.50,000/- has been caused to the complainant due to the negligent act of the opposite parties. It has happened because he had to pay Rs.33,450/- as repairing charge to the opposite parties and because of difficulties he faced in his job and at home because of non-availability of vehicle. Hence this complaint.

2. Opposite parties 1 & 2 have filed a joint version but no version is seen filed by 3^rd opposite party though it has been represented on 6/3/2006 that opposite parties 1 to 3 have filed version. 4^th opposite party has filed a separate version.

3. Opposite parties 1 & 2 in their version contend as follows: Complaint is not maintainable either in law or on facts, that the complaint is barred by limitation and is liable to be dismissed under Section 24 A of the Consumer Protection Act, 1986, that a complaint after the expiry of the warranty period is not maintainable before this Forum, that the complainant has no case that there has been any deficiency in service on the part of the opposite parties, these opposite parties have unnecessarily been made a party to the proceedings. The statements of the complainant that he used to maintain his car as per the manual, used to service the vehicle at specified intervals and used specified lubricants as per the manual is not admitted. That the complainant had on 27/6/2005 taken his vehicle to the workshop of the 4^th opposite party. The 4^th opposite party had while carrying out the service on the vehicle based on their observations on the engine condition had suggested repairs to the engine and other ancillary repairs to enhance performance of the car. The complainant having been appraised of the fact and the fact that the repairs would cost around Rs.32,000/- as the warranty of the vehicle had expired, had of his own volition agreed to have the repairs done on payment basis. The estimated amount of Rs. 32,000/- was for the repairs to the engine, clutch overhaul, electrical repairs, regular service, wheel alignment etc. The complainant had taken delivery of the vehicle after the repairs, expressing satisfaction over the work done and paying the amount for the repairs without any demur. Hence statement of the complainant that he was shocked on hearing the amount towards repair charges and he had sought for carrying out the engine repairs free of cost is raised without any bonafides and as an afterthought, that repairs to the engine on account of oil consumption after around 5 years of purchase of the vehicle and after the vehicle had covered 55,000kms cannot by any stretch of imagination be termed as a manufacturing defect. The manufacturer has not provided any extended warranty for the vehicle. No major defects were ever noticed in the vehicle of the complainant during the subsistence of the warranty nor was any such defect ever brought to the notice of the opposite parties during the subsistence of the warranty. The opposite parties state that there has been no deficiency of service on their part as alleged, that the opposite parties had replied to the notice sent on behalf of the complainant. Hence the present statement that inspite of the written complaint made by him, the opposite parties did not carry out the repairs free of cost is made without any bonafides, that the opposite parties state that they have not caused any damage to the complainant on account of any negligent act on their part as alleged. The complainant has raised the said allegation without any bonafides and with ulterior motives, that the complainant is not entitled to the reliefs sought for in the complaint.

4. In the version filed by 4^th opposite party it has been contended that the averment that the car in the instant case was always maintained as per the user manual, etc are false and only averred for the purpose of the complaint. It is submitted that the complainant had purchased the car from M/s. Benz Motors, Thiruvananthapuram in October 2000 and the complainant had come to the opposite party for servicing only on 13/12/2003. M/s. Benz Motors is not a party to the proceedings and hence the complaint is bad for non-joinder of necessary party. It is true that the complainant had serviced his vehicle from the opposite party's workshop on 27/6/2005 but the averment that the complainant had on several previous services reported engine oil consumption and fast deterioration of quality of the engine oil is false and baseless. Further the averment that the opposite party has reported extensive engine damage and recommended major engine kit replacement is also false and without any basis and only for the purpose of the complaint. That on 27/6/2005 the vehicle was brought to the opposite party's workshop for the 55,000 kms service and for rectifying minor complaints like brake adjustments, clutch adjustment, engine oil leak, etc. On inspection of the vehicle by the opposite party's service personal it was diagnosed that the consumption of engine oil was very high. It is submitted that the consumption of engine oil becomes high if the vehicle is not maintained and driven as per the User Manual provided to the complainant at the time of purchase of the said vehicle. Hence the high consumption of the engine oil is solely due to the rash, negligent and careless handling of the vehicle by the complainant. Accordingly the opposite party recommended for an engine overhaul amongst other repairs like clutch overhaul, alternator overhaul, starter overhaul, fuel injunction pump calibration and 55,000kms service, so as to bring down the engine oil consumption and stated to the complainant that the estimate repair charges would be around Rs.32,000/- since the warranty period of the vehicle had expired. It is submitted that the warranty period is 18 months from date of purchase. The complainant approved for the same and accordingly the overhauling of the engine and other repairs were done to the satisfaction of the complainant. That there is no manufacturing defect in the said vehicle and the engine overhauling done on the vehicle after the vehicle had covered 55,000kms is not due to any defect in the engine but is only to enhance the life of the engine. It is true that the complainant had requested for free servicing and overhauling of the engine, but since as stated supra, the warranty period of the vehicle had expired the opposite party cannot provide service / repairing free of cost. The warranty period for the said vehicle was for 18 months from the date of purchase. The period of 18 months expired in April 2002. The complainant had approached the opposite party for the first time only on 13/12/2003 for servicing the vehicle, ie., after the warranty period had expired hence the averment in the said para that the service company failed to check the engine for wear and rectify it before the warranty expired, will not hold any water. That the engine overhauling of the said vehicle was required due to improper usage and improper maintenance of the vehicle by the complainant. There is no deficiency of service on the part of the opposite party and the averment thereto in the complaint is baseless. Hence prays for dismissal of the complaint.

Complainant has been examined as PW1, marked Exts. P1 to P12 on his side. DW1 has been examined on the part of 1^st opposite party and Ext. D1 has been marked. Commissioner has been appointed by this Forum and his report has been marked as Ext. C1.

5. The points for consideration are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the vehicle in dispute suffers from manufacturing defect?

3. Whether the complainant is entitled for the reliefs claimed?

6. Points (i) to (iii): The allegation of the complainant is that the vehicle purchased by him in 2000 was taken to opposite parties for service on 27/6/2005 for the 55,000kms preventive maintenance service and the complainant had reported the fast deterioration of quality of oil in the engine and that the service centre recommended 'major engine kit' replacement as extensive engine damage was reported. According to the complainant engine damage is a manufacturing defect and that during the warranty period the authorised service centre did not disclose any engine defect. According to the opposite parties, the defects have arisen after the warranty period and hence contend that the complaint is barred by limitation. But the case of the complainant is that the vehicle in dispute had manufacturing defect. Since manufacturing defect has been alleged the question of limitation on the above ground does not arise.

7. Opposite parties have alleged that the defects in the car is due to the rash, negligent and careless handling of the vehicle by the complainant. At this juncture, the commission report marked as Ext. C1 is to be looked into. As per Ext. C1, the Commissioner has reported that during inspection job records from February 2006 onwards only were available. The commissioner has also reported that it is a clear fact that in normal cases the replacement of major engine kit will not come at 55,000kms. Premature failure may occur due to following reasons:

a) Manufacturing defect of the component.

b) Maintenance defects either from service station or owner

c) Usage of vehicle – driving habbits, fuel and oil quality used.

As the vehicle owner is a qualified Engineer with adequate knowledge about usage of vehicle, the chances of premature failure due to owners negligence is very less. Moreover the client has mentioned that he was always using quality oil as specified by the company. These facts lead to the suspicion that the premature replacement of major engine kit may be either manufacturing defect or service defect. The exact factor can be ascertained only if the service records are available for inspection. Further the commissioner has concluded that the vehicle might have manufacturing or service defect during the period of use till replacement of major engine kit. In the above circumstance, the Commission Report is the best evidence in this case for considering the nature of the complaint and the allegations about the damages. The Commissioner is a qualified Mechanical Engineer and he has not been cross examined. Hence the report on the findings of the commissioner to the effect that the complainant who is a qualified Engineer with adequate knowledge about the usage of vehicle and the chances of the premature failure due to owner's negligence is very less is accepted. When a purchaser spends huge amount of money for buying a car he expects the car to be without defects. In this case, it cannot be concluded that the complainant who is a qualified Engineer had handled the vehicle in a rash manner without carrying out proper service. The documents produced by the complainant the commission report establish the genuineness of his grievance. We find no merit in the plea of the opposite parties that defects originated after the expiry of the warranty. Ext. P4 is the satisfaction note issued by the complainant to the 4^th opposite party. It is the satisfaction note wherein the complainant has recorded it at the time of taking test drive of the vehicle wherein he has noted excessive engine noise, A/C not connected, Electrical wire at PIP disconnected, wheel alignment certificate not found and oil consumption and fuel efficiency can be attested only after sufficient running. It is true that when a person accepts the vehicle after service the defects would be noticed only after using the same for a while. There is no point in saying that at the time of delivery the complainant was satisfied with the condition of the vehicle. In this case the complainant could not use the vehicle defect free within reasonable expected time for normal vehicles. Considering the above discussions we find that the vehicle given to the complainant had manufacturing defect and the claim for Rs. 33,450/- paid by the complainant is refundable by the opposite parties. Hence the complainant is found entitled for refund of Rs. 33,450/- from the opposite parties jointly and severally along with a compensation of Rs.5,000/- with a cost of Rs.3,000/- from the opposite parties jointly and severally.

In the result, complaint is allowed. Opposite parties shall jointly and severally pay Rs. 33,450/- along with a compensation of Rs.5,000/- and a cost of Rs. 3,000/- to the complainant. Time for compliance 2 months from the date of receipt of the order, failing which the above mentioned entire amount shall carry interest @ 9%.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16^th day of August, 2011.

S.K.SREELA, MEMBER.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

C.C.No: 380/2005

APPENDIX

I. Complainant's witness:

PW1 : Ajith Haridas

II. Complainant's documents:

P1 : Copy of description of work done

P2 : " spare bill credit (spare parts)

P3 : " " "

P4 : " satisfaction note dated 4/7/2005

P5 : " record of services performed

P6 : " R.C Book

P7 : " letter dated 1/7/2005 issued by the complainant

P8 : " letter dated 2/7/2005 issued by the complainant

P9 : " " "

P10 : " letter dated 4/7/2005 issued by the complainant

P11 : " letter dated 15/7/2005 issued by the Thiruvananthapuram Jilla Upabhokthru Samithi

P12 : " letter dated 28/7/2005 issued by the opposite party

III. Opposite parties' withess:

DW1 : Shaji Valusseri

IV. Opposite parties' documents:

D1 : Copy of the Owner's manual & Service Book containing the conditions of the warranty

V. Court witness : NIL

VI. Court Exts:

C1 : Commission Report.

PRESIDENT