BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 98/2004 Filed on 26.02.2004

Dated : 16.08.2012

Complainant:

Latha, W/o Shaji, 'Thiruvathira', Ambalathinkara, Kazhakkuttom P.O, Thiruvananthapuram.

(By adv. C.S. Raj Mohan)

Opposite parties :

1. M/s Tata Motors Officers and Network, Passenger Car Business Unit Marketing and Customers Support, 26^th Floor, Centre No. 1, World Trade Centre, Cuffe Parade, Mumbai-400 005.

    

2. Tata Motors, Passengers Car Business Unit, K.D. Block, Pimpiri, Pune-411 018.

    

3. M/s Kulathunkal Motors, Kulathunkal Buildings, Overbridge, M.G. Road, Thiruvananthapuram-1.

(By adv. M/s Menon & Menon)

This O.P having been heard on 16.07.2012, the Forum on 16.08.2012 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The complainant had purchased a Tata Indica V2 Diesel Car for an amount of Rs. 3,65,517/-. Complainant purchased the car with financial assistance from ICICI Bank. The car was purchased for her daily use since she is physically weak and she cannot travel by public carriage vehicle. But to the surprise of the complainant on the 3^rd day from the date of purchase of the car, she found that the engine oil of the car was completely burned off. Complainant took the car to the 3^rd opposite party. 3^rd opposite party again filled the engine with fresh oil, but the same defect was repeated on several occasions. Further more she noticed that vehicle has no proper pulling as specified in the owner's manual and service book and also as guaranteed by the opposite parties. The car had other defects, such as persistent starting trouble, improper functioning of the radiator, excess smoke emitting etc. As these defects were noticed by the 3^rd opposite party, the 3^rd opposite party directed the complainant to entrust the vehicle with him. As per their direction the vehicle was entrusted to the 3^rd opposite party on 15.12.2003 for curing the defects. The vehicle was returned on 23.12.2003. Even after the said repairs the said vehicle was not functioning properly and all the defects which were in the vehicle on 15.12.2003 continued even after the repairs done by the 3^rd opposite party. After repair, the said vehicle has an added defect that if the A/C is put into operation the vehicle will not move at all. As there is no other way the complainant again entrusted the vehicle to the 3^rd opposite party on 07.01.2004 as per Job Card No. 10002. On examination of the vehicle it is found that the engine could not be repaired as there is manufacturing defect. Complainant demanded the opposite parties to replace the vehicle with another vehicle as per the warranty, but the opposite parties turned deaf to her grievance. Hence this complaint.

Opposite parties 1 & 2 filed joint version contending as follows: Complaint is not maintainable either in law or on facts. Complainant had purchased the Tata Indica V2 car after personally inspecting the same and being satisfied with the car. Further these opposite parties are in no way liable for the additional amounts spent by the complainant towards purchase of accessories and extra fittings. These opposite parties do not admit the statement made by the complainant that she is physically weak and that she had purchased the car for her daily use. When the complainant had taken the vehicle to the workshop of the 3^rd opposite party on 13.10.2003 with a complaint of oil leak, they had attended to the complaint to the satisfaction of the complainant and had requested her to bring back the vehicle after plying the vehicle for 1000 kms so as to ascertain the actual nature of the complaint. The vehicle was thereafter taken to the workshop of the 3^rd opposite party on 18.12.2003. The 3^rd opposite party had replaced the half engine block of the complainant's vehicle and returned the vehicle to the complainant on 20.12.2003. That though complainant had taken the vehicle to the workshop of the 3^rd opposite party on 07.01.2004 she had no complaints with regard to the reduction in oil level and she had entrusted her vehicle on the said day for carrying out the routine service. Though the 3^rd opposite party carried out the routine service and made ready the vehicle for delivery on 07.01.2004 itself, the complainant had not taken delivery of the vehicle. That inspite of letters dated 13.01.2004 and 09.02.2004 sent by the 3^rd opposite party to the complainant, she has not taken delivery of the vehicle. As the vehicle of the complainant does not suffer from any manufacturing defect she is not entitled in law or on facts to have her vehicle replaced with another vehicle. The vehicle of the complainant has been ready for delivery from the evening of 07.01.2004 after attending to the regular maintenance service. Hence these opposite parties are in no way liable for the alleged mental agony, hardships and loss stated to have been sustained by the complainant from 07.01.2004 onwards for her hiring other vehicles for her journey. As these opposite parties have not caused any mental agony or loss to the complainant she is in no way entitled nor are these opposite parties liable to compensate the complainant. Hence prays for dismissal of the complaint with compensatory costs.

3^rd opposite party contends that the complainant has purchased the vehicle on her own free will and accord after being convinced on the quality of the vehicle available in the market worth its value. The statement that the complainant is weak and that she cannot travel by public carriage vehicle is not known to this opposite party and hence denied. Further the details of the loan alleged to be taken is left blank in the copy served on the 3^rd opposite party and hence denied. On 13.10.2003 the complainant brought the vehicle to check the engine oil level. On inspection of the vehicle it was found that the oil level was slightly low and so the oil was topped up. The vehicle was released on the said day itself to the complainant under observation for 1000 km. No other complaint was reported by the complainant. This opposite party informed the 2^nd opposite party of the phenomenon of oil level lowering. The 2^nd opposite party advised this opposite party to check the compression of the engine and in case the compression pressure was low to replace the ½ engine block irrespective of the vehicle having only run 2000 km. This act was advised by the 2^nd opposite party as an act of goodwill. Hence as per the request of this opposite party the complainant brought the vehicle to this opposite party on 18.12.2003. On 18.12.2003 the ½ engine block was replaced under warranty and the complaint was fully rectified. After test drives and computerized verification and being fully satisfied of the performance the vehicle was delivered on 20.12.2003 at the complainant's house. On 07.01.2004 the complainant brought the vehicle to the opposite party for usual inspection. The opposite party checked the vehicle and found that it was perfectly in order and all the minor defects rectified earlier were well in order. The opposite party informed the complainant to take the vehicle since it was well in order. But the complainant did not come to take back the vehicle. The opposite party has issued many letters to the complainant to take the vehicle but she hasn't done so. No loss has been caused to the complainant by this opposite party. Hence prays for dismissal of the complaint.

This complaint has been remanded from the Hon'ble State Commission, for appointing an expert commissioner to examine the vehicle and to file his report. Accordingly, an expert commissioner was appointed by the Forum and the report has been marked as Ext. C1.

Both parties have filed affidavits. Exts. P1 to P14 were marked on behalf of the complainant and Exts. D1 to D10 were marked on the part of the opposite parties.

Issues for consideration are:-

1. Whether the vehicle supplied to the complainant suffers from manufacturing defect?

2. Whether the complainant is entitled for the reliefs as claimed in the complaint?

Points (i) & (ii):- From Ext. P1 and P6 the date of delivery of the vehicle is seen as on 29.09.2003. The credit bill dated 23.12.2003 which has been marked as Ext. P5 indicates the service done on 15.12.2003. Complainant alleges that on the 3^rd day of its purchase, the engine oil of the car burnt off completely and the 3^rd opposite party filled the engine with oil, the same defects repeated on several occasions. As per Ext. P2, it is evident that half engine and other items were repaired. As per Ext. D2, it has been admitted by opposite parties that “When your client car was reported to workshop for the complaint of engine oil low on 13.10.2003 at 1000 kms, the same was examined by our dealer and appropriate action was taken by them. Car delivered to your client keeping it under observation for another 1000 kms to ascertain the complaint. On 18.12.2003 the car was again recalled to workshop as per our dealer's advise to rectify the defect. The car was delivered to your client on 23.12.2003 after taking necessary action as per norms”.

As per Ext. C1, the commissioner has reported that “the complaint related to excess engine oil consumption was found recorded on all the job records (Job Card No. 7381 dated 13.10.2003, No. 8950 dated 04.12.2003, No. 9378 dated 18.12.2003 etc.) prior to the major engine works. The problems like low pulling and excess fuel consumption were also raised by the complainant. As per the entries on the job card No. 9378, at 2063 km the vehicle broke down again and it was given to service centre of M/s Kulathunkal Motors for repair work on 15.12.2003. The major repair works to the engine were done during this time. It was recorded as half engine block replacement under warranty. This includes all the engine components like cylinder block, crank shaft, pistons, connecting rods etc. except the cylinder head as shown in the cross sectional figure below. The vehicle was delivered to the complainant on 23.12.2003”. Commissioner has given a figure of half engine block in Ext. C1. Commissioner reports that generally the components like half engine will not be kept as ready stock and will be procured against order. As per the entries in job card No. 10002 dated 07.01.2004 at odometer reading 2770 km, after doing the major engine repair work, the customer has registered complaint again related to low pulling, coolant leak, low mileage, burning smell from engine, excess smoke etc. As rectification for these complaints, M/s Kulathunkal Motors send the fuel injection pump (FIP) to TVS and got corrected and the engine valve clearance adjusted. At the time of initial inspection at the service centre of M/s Kulathunkal Motors, the vehicle was brought from the junk yard and was in a very bad condition. The car body was having dent all around and on the top roof. There were patch works on many places like rear right door, bonnet, dickey, front bumper etc. The vehicle was found repainted carelessly without doing the proper rust proofing. Many parts from the vehicle was found missing. All the tyres including the spare wheel were found unevenly worn out and were in a very bad condition. The seat and seat covers were found damaged. That the workshop manual/service manual is one of the most essential reference material in all the reputed company authorized service centres to ensure correct service practice and data for all precision works. But at the time of inspection the service centre of M/s Kulathunkal Motors were not having the service manual of Indica V2 car. Even though they have agreed to produce the same to the expert commission for reference, they have failed to produce the same till the time of preparation of this report. The under body components and silencer/muffler were found rusted. Both the suspension lower arms, shock absorbers, springs etc. were also found rusted. The transmission oil and power steering oil was found leaking. As per the manufacturer's specification given on the service manual the minimum required engine cylinder compression pressure for Indica V2 (for dry test) is 18 kg/cm². But none of the engine cylinders were having the recommended minimum pressure. Commissioner has concluded that the vehicle was having excessive oil consumption right from the beginning. The reason for the excessive oil consumption was not analyzed by the service centre authorities and brought to the notice of M/s Tata in time though it was entered on any of the job records. The vehicle was also having low pulling problem. Being a new vehicle, due importance was not given for this problem and they kept on topping up the engine oil level many times. The major reason for excessive oil consumption was due to the damage in engine cylinder and related components. The engine overhauling was done after identifying this problem. Commissioner reports that being a new vehicle, this cannot be treated as a normal wear and tear or a usage problem. It can only be treated as a manufacturing defect on the engine. Though the service team claims to replace the half engine block, the entries on the job card No. 10002 dated 07.01.2004 after the engine work showed that the low pulling problem and low mileage complaints persisted even after the engine work. The service centre authorities of M/s Kulathunkal Motors could not show any documents regarding the warranty claimed for the replaced half engine block or the bill/invoice or purchase order of half engine block from the manufacturer. The vehicle was taken for engine work on 15.12.2003 and was delivered to the customer on 23.12.2003, i.e; only eight days. If the half engine block was replaced, the condition of the engine even at the time of inspection would have been satisfactory. Moreover the engine can be repaired by changing the piston rings alone or by changing the cylinder liners rather than changing the half engine block. The average reading of cylinder pressure in dry compression test is well below the TATA recommended minimum compression of 18 kg/cm² for Indica V2. It may be noted that the reading on wet test is found increased. The increase in reading on wet test was due to the presence of thick lubrication oil poured in the cylinder during the wet test, which will seal the clearance between the cylinder and piston created due to excessive wear. The vehicle was kept in a junk yard and was not protected from weathering.

Complainant has not filed any objection to CR. But the opposite parties have filed their objection but the commissioner has not been examined.

Opposite parties contend that the said report cannot be considered by this Forum without the complainant having examined the author of the said report namely the expert commissioner. It has been held by the Hon'ble Supreme Court in the decision reported in AIR 1999 SC 3318 at paragraph 19 that the report of the expert commissioner cannot be accepted on file without examining the said expert commissioner. Assuming (without admitting) that the report of the expert commissioner could be accepted on file, it is submitted that a perusal of the said report would disclose that the expert commissioner has not given any cogent reasons to support his finding that the alleged defects noted by him are on account of manufacturing defects. As held by the Hon'ble Supreme Court in the decision reported in AIR 1999 SC 3318 at paragraph 18 the findings in the report of an expert commissioner should be based on cogent reasons and scientific material supported with data and materials furnished which form the basis of his conclusions. The expert commissioner has submitted the report without conducting any tests as prescribed and based on a naked eye view of the vehicle. The present findings of the expert commissioner could only be treated as his personal opinion and could not be a basis for this Forum to arrive at a conclusion. Hence for the said reason as well the report of the expert commissioner is liable to be rejected. Since the complainant has no objection to the commission report, the opposite parties ought have examined the commissioner, as opined by the Apex Court in AIR 1999 SC 3318 in State of Himachal Pradesh Vs. Jai Lal & others, “The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions”. The commissioner has arrived at the conclusion on the basis of proper tests. Ext. C1 contain pictures also. As per it, commissioner has reported the engine compression pressure with the help of picture which reveals the use of appropriate methods for the test. Further on going through Ext. C1, we find that the commissioner has concluded the same on the basis of scientific opinion and convincing tests.

Opposite parties have contended that the complainant has purchased the car after personally inspecting the same and being satisfied with the car. Further they contend that after test drives and computerized verification and being fully satisfied of the performance the vehicle was delivered on 20.12.2003 at the complainant's house. At this juncture, it is to be noted that when a consumer buys car, he/she will be impressed in the look of the vehicle and satisfied about the good looks prima facie he will take away the vehicle. So there is no point in saying that at the time of delivery, the complainant was satisfied of the perfect condition of the vehicle. It is only after putting the vehicle into regular use that the defect come out one by one and such defects cannot be understood at the time of purchase. These defects will come out only after considerable use. In this case the complainant could not use the vehicle defect free from the very inception. The desire of a new buyer has been disappointed by the performance of the vehicle. From the very beginning the vehicle has been taken to the service centre.

Hence from the above discussions, this Forum is of the view that the complainant has succeeded in establishing her complaint. As per Ext. C1 the commissioner has concluded that the present condition of the engine is not at all satisfactory. Commissioner has noted that the effect of keeping the vehicle idle for long time cannot make severe corrosion inside the gas tight and lubricated cylinder and this cannot be attributed as a reason for low cylinder pressure obtained in the compression test at the time of inspection. That from the above mentioned points it is suspected that the half engine replacement for the engine was not done and the engine might have been overhauled by replacing minimum components by M/s Kulathunkal Motors. Hence the complainant is entitled for refund of the cost of the car along with compensation and costs.

In the result, complaint is allowed. Opposite parties shall jointly and severally pay Rs. 3,53,780/- along with Rs. 25,000/- as compensation and Rs. 5,000/- as costs. Time for compliance one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order.

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 2012.

Sd/-

S.K. SREELA : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

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O.P. No. 98/2004

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of owner's manual and service book.

P2 - Copy of delivery receipt

P3 - Copy of R.C. Book.

P4 - Copy of insurance policy certificate

P5 - Copy of credit bill issued by Kulathunkal automobiles dated

23.12.2003

P6 - Copy of invoice dated 29.09.2003

P7 - Copy of new vehicle release order

P8 - Copy of legal notice dated 07.01.2004

P9 - Copy of acknowledgement cards.

P10 - Copy of postal receipts

P11 - Copy of tourist taxi receipt.

P12 - Copy of reply notice

P13 - Copy of receipt dated 29.09.2003

P14 - Copy of reply notice dated 22.01.2004.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of reply notice dated 22.01.2004

D2 - Copy of reply notice dated 05.03.2004.

D3 - Copy of job card.

D4 - Copy of job card dated 08.12.2003.

D5 - Copy of job card dated 07.01.2004.

D6 - Copy of letter to complainant dated 13.01.2004

D7 - Copy of letter to complainant dated 09.02.2004

D8 - Copy of letter to complainant dated 01.03.2004.

D9 - Copy of legal notice dated 05.03.2004.

D10 - Copy of letter to complainant dated 09.03.2004.

V COURT EXHIBIT

C1 - Commission Report

Sd/-

PRESIDENT

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