PER SH.RAJINDER SINGH GILL, PRESIDING MEMBER

             Succinctly put, the complainant purchased a Tata Indigo CS Dicore vehicle from OP-2 on 29.7.2008 for which he made total payment of Rs.4,84,870/-.  However, the vehicle suffered from lot of manufacturing defects and many times he had to abort the vehicle on highway due to malfunction of the engine.  When he took delivery of the car it had dents and scratches; water entered the sitting compartment when it had done only 430 kms; the meter regularly showed check engine warning which used to vanish after restarting the engine which led to lower mileage and pick up; the car had pulling problem to one side and even the alignment and suspension replacement yielded no result; engine noise increased considerably; power steering was hard etc. It has been alleged that apart from the above the vehicle suffered from various other defects and the OP-1 once changed some parts and the others were left as it is despite the fact that the car was within warranty which caused a lot of mental and physical harassment to the complainant.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice on their part.

2.             In their written reply OP-1 admitted the facts with regard to the purchase of the vehicle in question by the complainant, however, it has been submitted that the same was having warranty of 18 months only.  It has been denied that the warranty was extended beyond 18 months or that there were scratches, dents over the body of the vehicle or that the same was suffering from any manufacturing defects. It has been submitted that the job cards/mails etc. did not reflect that there was any problem in the vehicle and whenever the vehicle was brought to the workshop, the same was attended properly to the satisfaction of the complainant.  It has been pleaded that the complainant has not produced any expert opinion in support of his case that the vehicle was suffering from any manufacturing defect.  Denying all the material allegations of the complainant and pleading that there has been no manufacturing defect in the vehicle and  deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made. 

3.             OP-2 in their separate written reply took almost similar pleas as were taken by OP-1 in their reply and also prayed for dismissal of the complaint

4.             Parties led evidence in support of their contentions.

5.             We have heard the complainant in person and the Learned Counsel for the OPs and have also perused the record including written arguments.

6.             There is no dispute between the parties regarding purchase of the above said car on 29.07.2008, which carried a standard warranty of 18 months.  It has also not been disputed that the said car was taken to the workshop of the OPs several times for repairs. The main contention of the complainant is with regard to the indication of “Check Engine fault “displayed on meter and also that from the first week of the purchase of the vehicle, it started giving problems but despite taking the vehicle number of times to OPs for its defect rectification,  the expert engineers of the OPs were unable to rectify the defects of the said car which clearly indicates that a defective vehicle was sold by the OPs. The complainant further contended that despite vehicle under extended warranty [for which he has paid extra amount of Rs 3,750/= vide receipt no. 4691 dated 27-08-2008, Annexure 2 A and 2 B (Colly.)], the OPs charged for the parts and Labour for which they however as per the warranty terms they were not entitled to. The complainant in support of his contentions has placed on record Annexure 1A, Annexure 1B and Annexure 1C which are the copies of the receipt which shows that the complainant had purchased the above said vehicle from the OP no. 2 for Rs 4,84,870/=. The complainant has also placed on record the photographs of the odometer to prove that the vehicle was continuously indicating the warning of “check engine” till the coverage of distance of 29249 kms. Annexure 3 to 20 J are the copies of the email correspondence  for the period from 05-08-2008 to 27-04-2010 which shows that the complainant took the said vehicle, number of times to the OPs for rectification of various defects and wrote several e-mails to OPs, whereafter a complaint was filed in this forum on 02-07-2010

7.             On the other hand the OPs while admitting the factual matrix of the case argued that they had not extended the warranty terms beyond 18 months and also that the complainant has not produced any record prove that he was entitled for the extended warranty. The OPs while referring to various judgments contended that the vehicle was free of all defects at the time when it was sold to complainant and thereafter whenever the vehicle was brought for repair it was repaired to the full satisfaction of the complainant, the defect in the vehicle if any occurred during the warranty period may be due to rough use, overload and its commercial use instead of personal use by the complainant. They also submitted that without any expert opinion, the vehicle cannot be said to have manufacturing defect. In support of there contentions they have placed on record only Annexure OP-2/1 which is copy of the job card dated 24-07-2010 which shows that the said vehicle was brought to them by complainant for scheduled service

8.             We have gone through the records very carefully to find out as to whether:- 

A.    the defects in the vehicle were reported to the OPs       by the complainant    during the warranty period or        not.

B.    the car was made available to OPs for inspection or      not.

C.    the OPs were able to rectify the defects when ever        it was reported to them by the complainant.

D.    the complainant was satisfied with the rectification     of the defects

E.    and the vehicle supplied to the complainant was   defect free or not.

9.             Perusal of the records clearly shows that from the first week of the purchase of the vehicle, the complainant had been taking the vehicle to the OPs for rectification of  various defects. Annexure 3 is the copy of job slip which shows that just after 6 days of its purchase the vehicle was taken to OP no. 2 due to the defect that the water entered in cabin area and in the job slip it has been clearly mentioned by service advisor that `rubber not fixed properly at time of manufacturing,; this fact was also intimated by the complainant to OP no. 1 “Manufacturer” vide email Annexure 10. Annexure 4Y is the copy of the tax invoice which shows that the vehicle was taken to OP no. 2 for first free service on 26-08-2008, wherein also various defects like left side pulling, check engine problem, delivery dents and scratches, suspension, power steering, engine noise, door adjustment and sun guard, were reported by complainant vide pre-job card Annexure 14 and the fact of dent and scratches has also been admitted by the service staff of OP ‘Mr. Sarabjit Singh’ that rubbing of the vehicle was pending. The fact regarding dents and scratches was also reported by complainant to OP no. 1 through email Annexure 4 Z.  When the above mentioned defects were not rectified by OP-2, the complainant wrote an email dated 20.10.2009, to OP-1 with a copy to OP-2 requesting them to get the said defects repaired or to replace the vehicle with a new one, if it is beyond repair. Thereafter various emails correspondence took place between the parties upon which Mr. Saket Chatrath - Manager customer support was deputed by OP no. 1 and job slip Annexure 6B was prepared wherein  various defects like  door strip lock, reverse gear light, AC water inside cabin, wiring check, sun visor adjustment, dash board noise, noise on engine side, wiper nozzle adjustment and pulling left side etc. were again observed and recorded and  the vehicle was again taken to OP-2 vide Annexure 6A on 13-11-2009 and some parts of the suspension like lower link ball joint each, front wheel knuckle etc. were changed and the problem of “check engine” and other misc. defects like sun visor, dash board noise etc. etc. were also instructed to be repaired but the complainant was not satisfied with the repairs as is clear from Tax invoice dated 19-11-2009 Annexure C-6 because it has been clearly mentioned by the complainant under the heading terms and condition that he is “not satisfied” with the condition of the vehicle/goods received by him from OP no. 2. The same fact has also been reported by the complainant to OP no. 1 with a copy to OP no. 2 through various emails for the period from 17.11.2009 to 20-11-2009, whereafter Mr. Saket Chatrath vide his email dated 21-11-2009 requested the complainant to again take his car to OP-2, whereupon the vehicle was again taken by the complainant to OP-2 on 24-11-2009 and 03-12-2009. On 09-12-2009 it was requested again by Mr. Saket Chatrath to take the vehicle to OP-2 for necessary action and rectification but they could not.

10.             The contention of the OPs that the defects in the vehicle could have occurred due to   rough handling and also that the vehicle was used for commercial purposes cannot be accepted as correct because except Annexure OP-2/1 which is the copy of job card issued by OP-2 for scheduled service and that too after the filing of the present compliant regarding the above said defects, nothing has been placed on record by the OPs to prove their contentions that the defects arose only due to rough handling or that the vehicle was used for commercial purposes. The next contention of the OPs that the vehicle supplied to the complainant was defect free, also cannot be believed because it is crystal clear from Annexure-3 that the vehicle was taken to OP-2 with a defect that water entered into the car just in first week of its purchase and that too after covering a distance of 430 Kms only, due to the fault of improper fixing of the rubber during manufacturing, as has been observed/mentioned by service advisor on Job Card Annexure-3 dated 05-08-2008. Thereafter, from 20-08-2008 till 27.04.2010, the complainant has been regularly reporting/ approaching the OPs to get the above mentioned defects rectified, which the OPs were unable to satisfy the complainant as is clear from Annexure 6 C dated 19-11-2009. On the other hand the OPs have not been able to prove that the said defects were rectified by them till 27-04-2010 whereafter this present complaint was filed in this Forum.

11.           The next contention of the OPs is that the complainant on 27-07-2010 has not reported any defect and has signed satisfactory report. It is pertinent to mention here that as it is clear from the work details the vehicle was taken to them for scheduled service on 24.07.2010 and not on 27.07.2010, wherein front wheel alignment check and adjust and steering centre routine work was done. It has been mentioned on Annexure OP-2/1 that the vehicle was last attended by them on 16-07-2010. During the pendency of case the complainant in reply to this fact has placed on record the letter dated 13-07-2010 alongwith tax invoice dated 09-07-2010 to prove that the vehicle was taken to them first on 09-07-2010, then on 10-07-2010 and thereafter on 13-07-2010 with the same problem of alignment of wheels as the vehicle was pulling left side and on these dates also, as is clear from letter dated 13-07-2010 the OPs could not align the steering wheel position, which in our view could be due to the existing fault as mentioned above vide pre job card Annexure- 14 dated 26-08-2008, which had occurred within one month of its purchase. It has been mentioned on Annexure OP-2/1 that the vehicle was last attended by them 16-07-2010, which means that the process of taking the vehicle to the OPs by the complainant continued after filing of the complaint, as the complainant  was encountering the defects continuously.

12.           The contention of the OPs that the complainant is not entitled for extended warranty is false because Annexure 2A and 2B which is the receipt for extended warranty clearly shows that the complainant has paid an amount of Rs 3750 on account of extended warranty to the OP 2. It has been clearly mentioned under the heading “Duration of Cover” that “18 months extended warranty in addition to the manufacturers warranty”.

13.           The next contention of the OPs is that the vehicle has covered about 44,000 kms therefore if there were any defects it could not have covered that much distance.  It is pertinent to mention here that the case of the complainant is that from the first week of the purchase of the vehicle, he had been encountering various major defects like water entered in the cabin area, vehicle pulling one side, suspension problem, check engine problem etc etc while plying it on the road. Otherwise also, it nowhere been mentioned by the complainant that the vehicle was totally jammed due to the defects but it was the type and quantity of defects, as mentioned in job card Annexure 14, which caused him mental agony and harassment, as the OPs were unable to rectify in two years despite approaching them number of times through every possible means.

14.           The Learned Counsel for the OPs have also submitted in their reply to points no. 5 to 7, that the complainant has spent Rs.50,000/- for the defects but we find nowhere, if the complainant had ever mentioned/submitted this fact of spending Rs.50,000/- for rectification of the defects from outside. Infact, the complainant had mentioned that he had spent Rs.50,000/- extra for a car with DICORE engine,  as the OPs had claimed that the said car with DICORE engine has better performance.  This contention of the OPs is also baseless and is of no strength to their case.

15.           Record clearly shows that the complainant had been regularly taking the vehicle, as and when, required/ asked by the OPs but the OPs were not able to rectify the defects, as is clear from Annexure C-6, wherein it has been clearly mentioned by the complainant that he is not satisfied with the repairs. It is pertinent to mention here that if a customer buy a car after spending a huge amount of Rupees Rs 4,84,870/= and on the 6th day of its purchase, water enters in the cabin area {as has been mentioned in job card Annexure 3 by service advisor} and also various defects like check engine indication, problem of door strip lock, reverse gear light, AC water inside cabin, wiring check, sun visor adjustment, dash board noise, noise on engine side, wiper nozzle adjustment, left side pulling, dents and scratches, suspension, power steering, were observed; then one  can imagine a state of trauma the customer/complainant would go through.

16.           The Learned Counsel for the OPs while referring to the various judgments has also contended that the complainant was required to produce the expert opinion to prove that there was a manufacturing defect in the vehicle but in the present case it has been admitted by the OP vide Annexure-3 that the rubbers were not fixed properly at the time of manufacturing and also, when OP-2 was unable to rectify the defects, Mr. Saket Chatrath, Manager of OP-1 was deputed upon the request of the complainant to look into the matter, who was also not able to get the said defects repaired as is clear from job card Annexure  C-6 that the complainant was  “not satisfied” with the condition of the vehicle/goods received by him from OP no. 2.  It has been admitted by the OP-2 in para no. 16. of its reply that the vehicle was brought to them by the complainant 13 times and also it is evident from the record that the complainant wrote about more than 14 emails to the OPs for the period from October, 2009 to April, 2010 requesting them to settle his grievances but was of no use at all, despite making the car available to them as and when required/asked by the OPs which is clearly reflected from the records on file.

17.           In our view the complaint has sufficiently proved his case by way of documentary evidence to prove that the vehicle supplied to him remained defective through out but despite approaching the OPs for its rectification they miserable failed to rectify the problem of the check engine warning including other defects as mentioned in Annexure 14and thrust this unwanted litigation on him. On the other hand the OPs have not denied regarding issuance of job card placed on record by the complainant.  It has also been proved that during the entire period of occurrence of defects, that the vehicle was under the warranty cover, as is clear from warranty receipt Annexure 2A and 2B, as mentioned above.  The only one document i.e. Annexure OP-2/1, which has also been proved as no strength to the case of the OP, all the other bald assertions of the OPs without any cogent evidence cannot be taken into consideration against the complainant.  The OPs not only have been deficient in rendering proper service to the complainant but also have adopted unfair trade practice by selling the car which was having number of defects as has been mentioned above, which the OPs could not rectify it and for this act of the OPs, they are liable to compensate the complainant and also to refund the amount of the car, if they are unable to rectify the said defects, after giving them one opportunity by this Forum.

18.           In view of the above discussions we are of the considered opinion that the present complaint must succeed and the same is accordingly allowed. The OPs are directed to rectify the defects mentioned at Annexure-14 free-of-cost upto the entire satisfaction of the complainant, being the vehicle under warranty at the time, when the defects arose and supply it to the complainant within 30 days from the date of receipt of copy of this order. The OPs shall also pay to the complainant Rs.50,000/= as compensation towards mental agony and physical harassment alongwith Rs. 5,500/= as costs of litigation. The order shall be complied with by the OPs within 30 days from the date of receipt of copy of this order failing which the OPs would be liable to pay the aforesaid compensation along with penal interest @ 12% per annum since the filing of present complaint i.e. 02-07-2010 till the order is fully complied with.

19.           Needless to mention here that if the said defects are beyond repair then the OPs shall refund the cost of the vehicle that is Rs 4,84,870/= plus Rs 3,750/= Rs 4,88,620/=  besides payment of compensation of Rs 50,000/= and litigation costs of Rs 5,500/=.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.

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