F.A.No.1640 OF 2008 AGAINST C.C.No.673 OF 2007 DISTRICT FORUM KHAMMAM

Between:

Podila Raja Lingeswar Rao S/o late Brahmaiah
age 32 years, Occ: Business, R/o H.No.2-1-135
Tekulapally Village, Khammam Town & Dist.

                                                                                Appellant/complainant

                A N D

1.     Regional Manager
        Regional office, TATA Motors
        Bangalore Passenger Car Business Unit
        406, 4^th Floor, Blue Cross Chamber
        No.II, Infanty Cross Road,
        Bangalore

2.     Select  Motors Warangal
        rep. by its authorized Dealer
        15-2-55/2, Opp. Rama Krishna Theatre
        Warangal

3.     The Authorized Select Motors Agent
        Uday Motors/TATA Motors
        Warangal Cross Roads, Khammam

                                                                                Respondents/opposite parties

Counsel for the Appellant             Sri M.Hari Babu

Counsel for the Respondent No.1   Sri Ms Shireen Sethna Baria

Counsel for the Respondent No.3   Sri M.Laxma Reddy

QUORUM:   HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT  

         SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE TWENTY NINETH DAY OF AUGUST

                                                                TWO THOUSAND ELEVEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                                                        ***

1.     Feeling dissatisfied with the dismissal of his complaint by the District Forum, the complainant has filed the appeal contending that the District Forum failed to consider the offer for settlement by the opposite parties noted in the interlocutory applications and that it had not considered the frequent repairs the vehicle, Indigo car required every 5 to 10 days which were noted by the opposite parties.

2.     The complainant had purchased Indigo XL Grand Dicor BS III, Classic ivory colour car on 6.3.2007.  The 3^rd opposite party is the authorized agent and second opposite party is the authorized dealer of the manufacturer of Indigo cars, the first opposite party.  The car was purchased for a consideration of `8,24,385/- and the complainant got registered it with the RTA as AP20P 6162 and taken it for service on 4.4.2007. 

3.     The complainant contends that the car posed frequent problems, belt problem at the first instance whereupon it was taken to the opposite party no.3 who in turn had taken it to the opposite party no.2 who had rectified the problem and thereafter the car posed problems such as starting trouble, noise in the engine and non-functioning of AC and on the advice of the opposite party no.3 the complainant had taken the car to the opposite party no.2 on 14.4.2007.  The opposite party stated to have rectified the problem and within 15 days therefrom the car had given trouble such as screeching noise from the engine and again on 7.5.2007 it was taken to the opposite party no.2 and again the car developed trouble with AC controller replay supply on 12.6.2007 as also on 25.6.2007 and on 11.7.2007 and on 17.8.2007.

4.     The first opposite party had resisted the claim contending that there were no manufacturing defects in the vehicle and that the vehicle was under hypothecation with financier.  It is contended that any claim in regard to the defect in the vehicle during warranty period has to be informed in writing as mentioned clause 10 of terms and conditions of warranty of the owners’ manual.  It is contended that as and when the vehicle was brought for free service it was promptly attended and it was delivered to the complainant.  The problems complained of by the complainant were due to normal wear and tear arising out of non proper lubrication and bad driving by its driver.  It is contended that the opposite parties were not negligent in attending the car.

5.     The second opposite party resisted the claim contending that it has no concern with the manufacturing of the vehicle and it is only a service provider after the sale of the vehicle and it had done the required service to the complainant whenever he brought the vehicle for servicing or for rectifying any defect in the vehicle.  It is contended that the complainant had not followed the manual instructions properly and did not maintain the vehicle properly.  It is stated that there were no manufacturing defects in the vehicle and the defects pointed out by the complainant were rectified and the vehicle was made roadworthy.  No expert evidence was produced by the complainant. 

6.     The opposite party no.3 had taken the same pleas and filed the counter in line with the contents of the counter filed by the second opposite party.

7.     The complainant has filed his affidavit and the documents marked as Exs.A1 to A9.

8.     The District Forum has dismissed the complaint opining that the vehicle cannot be replaced nor the amount ordered to be refunded since there were no manufacturing defects in the vehicle. 

9.     The point for consideration is whether the complainant is entitled to the replacement of the vehicle or refund of its cost and damages?

10.    The complainant had purchased Indigo Car on 6.3.2007 from the opposite party no.2.  The car was taken for the first service on 4.4.2007 and according to the complainant the car posed trouble in one form or the other like the belt problem which was rectified by the opposite party no.2.  The car had given trouble for the second time in the form of starting trouble, noise from the engine and non-functioning of AC.  Thereafter on 14.4.2007 the car was noted to have posed the problems, screeching noise from the engine and the same was rectified and the car was delivered on 15.4.2007 by the opposite party no.2 to the complainant.  The screeching noise from the engine occurred again on 7.5.2007 and the opposite partyno.2 attended the vehicle and rectified the problem.  Again on 12.6.2007 there was problem with AC controller reply supply which was attended to, by the opposite party no.2.  Thereafter on 25.6.2007 the vehicle was taken with the complaint of screeching noise from engine, hard clutch, the vehicle pulling to one side which were rectified by the opposite party no.2 on the same day.  Thereafter on 11.7.2007 the complainant complained of AC and engine noise which was rectified by the opposite party no.2 on 12.7.2007.  Subsequently, on 2.8.2007 the complainant had complained of noise in the engine, leakage of engine oil, over heat of radiator, non-functioning of radiator fan, electricity supply problem, non-functioning of phone switch and non-functioning of front right glass etc., which were repaired on 17.8.2007. 

11.    The opposite parties contend that there were no manufacturing defects in the vehicle whereas the complainant had submitted that frequent repairs required for, by itself indicate the manufacturing defects found in the vehicle.  No expert was examined to state that there was manufacturing defect in the vehicle.  The vehicle had repeatedly posed the problem such as screeching noise in the engine which is not only irksome but it would affect adversely the functioning of the engine.  It is not disputed that the vehicle had been taken for more than 10 times within a span of four months with the complaint of more than one problem and each time with the recurrence of the problems.  None of the opposite parties could prove that these problems were not due to manufacturing defect or the exact reason as to why such frequent problems arose.  It was for the opposite parties to show the reasons for these problems and not to acknowledge them whenever he had taken the vehicle to the garage.     The complainant has stated that he has purchased the vehicle to take his brother-in-law for periodical check up of heart and for the purpose of dialysis at Hyderabad.

12.    The complainant has got issued notice in the month of August 2007  requesting for replacement of the car with a new car in view of its frequent repairs during the warranty period.  A perusal of the record of warranty repairs carried out would show that on 14.4.2007 alternate belt was provided, on 8.5.2007 AC compressor was repaired as also on 12.5.2007 AC controller Reply was repaired.  At the cost of repetition we may say that the vehicle had frequently posed problems and even according to the opposite partyno.2 which attended the repairs, the vehicle was made roadworthy each time it was taken for the repairs.  By any stretch of imagination it cannot be said that the complainant was not subjected to mental tension and hardship owing to the repeated repairs required by the vehicle from the time it was taken for the first service till 17.8.2007.

13.    The second opposite party is the service provider of the car.  Even after repairing the vehicle for about 10 times within a span of  four months it was not able to establish that there were no manufacturing defects in the vehicle as also the second opposite party failed to prove that what all the defects pointed out by the complainant were on account of improper maintenance rather owing to normal wear and tear as also due to bad driving habit of the driver of the car.  The complainant, compared to the opposite parties is not expected to have the technical knowledge of the functioning of the vehicle and the manufacturing or other defects complained of.  We are of the opinion that the ends of justice would serve if the matter is remitted to the District Forum by providing opportunity to both the parties to prove their respective pleas.  The opposite parties cannot shift the onus on the complainant to prove that the vehicle suffered from manufacturing defects.  Equally the complainant cannot contend that the frequent repairs the vehicle required by itself is sufficient to point out the manufacturing defects in the vehicle.    . 

        In the result the appeal is allowed.  The order of the dismissal of the complaint passed by the District Forum is  set aside.    The complaint is remanded to the District Forum.  Both the parties shall appear on 19.9.2011 before the District Forum and adduce evidence.  The District Forum is directed to dispose of the matter within three months.  There shall be no order as to costs.

                                                                                PRESIDENT

                                                                                MEMBER

                                                                                MEMBER

                                                                            Dt.29.08.2011

KMK*