Kerala

Idukki

CC/14/404

Mr.Arun Ramakrishnan - Complainant(s)

Versus

M/s Tata Motors - Opp.Party(s)

26 Dec 2019

ORDER

DATE OF FILING : 9.12.2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26^th day of December, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.404/2014

Between

Complainant : Arun S/o Ramakrishnan,

Erappulamkattil House,

Puliyanmala P.O.,

Idukki.

And

Opposite Parties : 1. The Customer Service Head,

Tata Motors Ltd.,

20^th Floor, Tower 2 A,

One India Bulls Centres,

841, Senapati Bapat Marg,

Elphinstone Road, Mumbai – 400 013.

(By Advs: V. Krishna Menon,

Sibi Thomas & Prinsun Philip)

2. Tata Motors Ltd.,

Tutus Towers, 3^rd Floor,

NH Byepass Road, Padivattom,

Cochin – 682 204.

(By Advs: V. Krishna Menon,

Sibi Thomas & Prinsun Philip)

3. Tata Motors Finance Ltd.,

Kottayil Building,

Muvattupuzha Market P.O.,

Velloorkunnam, Muvattupuzha - 686 673.

(By Adv: Shiji Joseph)

4. The Manager,

Popular Mega Motors,

Building No.KP 13/23,

Parakkadavu, Kattappana,

Idukki – 685 508.

(By Adv: Fenil Jose)

5. The General Manager,

Focuz Motors,

Edappally, Kochi.

(By Advs: V. Krishna Menon,

Sibi Thomas & Prinsun Philip)

 

(cont....2)

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O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

Complainant purchased a Tata SF 407 BS-III model LMV Goods carrier from 5^th opposite party's show room at Kattappana on 1.4.2013. By way of vehicle loan from 3^rd opposite party, he arranged Rs.7,64,000/- for purchasing the vehicle. In addition to the amount, he incurred Rs.8000/- for registering the vehicle and Rs.65000/- for body building. This vehicle is purchased for earning his livelihood. When the complainant coming from Kattappana show room in the vehicle, the front tyres are worn out due to brake jam. On the same day of purchase, the vehicle entrusted to the workshop. This vehicle was taken to Ernakulam for repair work and on the 15^th day, the complainant along with the driver of 5^th opposite party took the vehicle from Ernakulam workshop. When they reached Perumbavoor, again the brake system jammed and again this vehicle entrusted to the Ernakulam workshop. Due to the strong protest from the side of the complainant, the 5^th opposite party delivered new vehicle of same range, by replacing this defective vehicle. Now the issue is related to the new vehicle.

 

The complainant further averred that when he coming from Kambam to Ernakulam in the vehicle with full load, on 9.5.2013, the steering of the vehicle was self locked and the vehicle was not in a position to move. The power steering system was lost. Immediately the complainant entrusted the vehicle to the authorised workshop of 4^th opposite party and transported the load in another vehicle. Due to that, the complainant lost his work. At the time of purchase, the 5^th opposite party assured 8 km mileage / litre diesel. But till now the complainant get only 4 km mileage per litre diesel. This matter is intimated to opposite party through their toll free number. At that time, they informed that all these defects will be cured on its first periodical service. But till now, none of the defects are cured eventhough the complainant conducted all the periodical services.

 

The complainant further contended that thereafter on 8^th January, when he plying the vehicle to Thrissur with full load, the brake system of the vehicle failed. At that time also, the cargo transported into another vehicle. Thereby the complainant caused a loss of Rs.9500/- in losing his consignment. The vehicle entrusted to the workshop of 4^th opposite party and at there it is noticed

(cont....3)

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that the rear brake fluid pipe of the vehicle is broken and fluid lost through the hole. The hole was closed by using M-seal and the vehicle was taken to his home. From the date of purchase, the vehicle showed so many defects and due to that the complainant has lost so many works. Eventhough the complainant intimated the matter to 1^st opposite party, they failed to replace the defective fluid pipe for a long time of 34 days. This caused a huge loss in his day to day works which amounts to Rs.1,36,000/-. At this time complainant lodged a petition before the Forum and numbered it as CC 52/2014, but again the defect of the vehicle increased day by day. It affected almost all parts of the vehicle. Under this circumstances, the complainant had withdrawn the case and filed the present case by adding the further mechanical as well as manufacturing defects of the vehicle.

 

After filing the case, the complainant notices engine oil level decreases and he further noticed engine oil presence in turbo head. When the defect persisted, 4^th opposite party dismantled the turbo and refitted it after repair, on 22.5.2014. For this, opposite party charged Rs.1873/- from the complainant. Thereafter the mileage again decreases from 4 km. Again the complainant approached 4^th opposite party on 4.9.2014 and after inspection, mechanic of 4^th opposite party advised to repair fuel injection pipe and demanded Rs.20000/- for this. But they repaired it free of cost as directed by the Forum and returned the vehicle to the complainant on 19.9.2014. Thereafter complainant noticed engine oil leakage and on 27.9.2014, complainant entrusted the vehicle to 4^th opposite party and the mechanic replaced several packings of the engine and thereby cured such defects. Now also the mileage of the vehicle is below 4 km / litre. When the complainant took the vehicle in his house and on inspection he noted that brake fluid pipe is broken and the tyres are worn out. Hence due to the recurring defects of the vehicle, the complainant is not in a position to use it and hence he kept the vehicle idle in his house.

 

Complainant further averred that eventhough the company offers 3 lakhs kilometres warranty in its engine turbo system, due to the recurring defects, the turbo system of the vehicle dismantled and refitted after curing its defects.

 

Complainant further averred that the vehicle was purchased for an amount of Rs.11,55,540/- and the EMI of this vehicle is Rs.19250/- and duration of the vehicle loan is 60 months. Out of this, complainant remitted Rs.1,55,170/- in the loan account and due to the recurring defect of the vehicle, complainant failed to remit the further instalments. The officials of 3^rd opposite party threatened the complainant that they will take coercive steps against the

(cont....4)

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complainant. Due to the recurring and persisting defect of the vehicle, complainant and his family had suffered a lot and they are mentally depressed. From the date of purchase of the vehicle, complainant approached the workshop nearly 18 times. On verifying the history of this vehicle, it is seen that the vehicle is having serious manufacturing defect and evenafter the authorised workshop people tried to cure the defect, they failed. It is came to know that this defect of the vehicle cannot be cured permanently. This act of the opposite party in selling defective vehicle amounts to gross deficiency in service and hence opposite parties are liable to replace the vehicle with a new one. Moreover, complainant remitted an amount of Rs.3800/- in each quarterly by way of goods permit charges and from 26.6.2014 onwards, the vehicle is kept idle.

 

The opposite parties are miserably failed to keep their offers regarding the mileage and efficiency of the vehicle. Hence the complainant filed this petition seeking relief such as to direct the opposite parties to replace this vehicle with a new one of same category and further direct the opposite parties 1, 2 and 4 to pay Rs.2 lakhs for each days loss as loss of earnings and further direct the opposite parties 1, 2 and 4 to pay compensation and cost. Direct the 3^rd opposite party to write off the penal interest and other charges of the vehicle loan.

 

Upon notice, opposite parties entered appearance and filed detailed reply versions.

 

In their version, 1^st and 2^nd opposite parties contended that, the complainant had personally selected the new vehicle from the yard of 5^th opposite party after inspecting the same and after being convinced of its performance and expressing satisfaction over the vehicle. When ever the complainant had approached the 4^th opposite party, with any alleged complaints, the service personnels in the workshop had examined the vehicle and such of these complaints noticed, being minor in nature, attended to the satisfaction of the complainant. On each occasion, the complainant used to take delivery of the vehicle after being convinced of the work done and expressing satisfaction over the same.

 

Opposite parties further contended that, they had at no point of time assured the mileage that a vehicle would give as mileage in a vehicle would vary from vehicle to vehicle depending upon the driving habits, condition of the road, load of the vehicle, condition of tyre etc. When the complainant have

(cont....5)

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taken his vehicle to the 5^th opposite party with a complaint of low mileage, the service personnels of the 5^th opposite party had in his presence conducted mileage test and the vehicle was found to give a mileage of 7.3 km / ltr.

 

Opposite parties further contended that the warranty of the vehicle is subject to the terms and conditions prescribed. The alleged complaint to the turbo charger was only on account of the complainant not following the guidelines regarding idling the vehicle after starting the same, for one minute. In spite of violation of an express condition of the warranty, the 4^th opposite party had as a gesture of goodwill carried out the necessary repairs to the turbo charger free of cost. These opposite parties are in no way liable to compensate the complainant and hence the complaint is liable to be dismissed.

 

Third opposite party in their reply version contended that the complainant is not a consumer as contemplated in the Consumer Protection Act. The complainant availed the loan for purchasing a commercial vehicle. In this case, the complainant opted the vehicle and the 3^rd opposite party financed the vehicle. In the loan agreement, complainant agreed that, he shall repay the loan in monthly instalments without any default. After making wilful default in the loan repayment, the complainant unnecessarily dragged 3^rd opposite party in this case. Here the complainant approached the Forum with a view to evade the repayment of the loan and for achieving his ill-motives.

 

In their reply version, 4^th opposite party contended that the subject matter of the case is a commercial vehicle and is using for commercial purpose. It is true that the said vehicle was brought to the service centre of this opposite party on 9.5.2013 and 17.5.2013 and the complaints reported were, steering tightness and brake complaints. The technician of the opposite party rectified the same. On verification, the brake was found to be alright and the complaint of power steering was due to air trapping in the fluid line and oil was rectified by bleeding the system. All these services are rendered under warranty. Later the brake liners on rear side were changed due to the wear and tear on 25.10.2013.

 

Opposite party further contended that, eventhough the vehicle was not purchased from them, whenever the complainant approached them with the said vehicle, the opposite attended him with due care and rectified all the complaints reported to them and at no point of time, the complainant expressed any dis-satisfaction in the services rendered by this opposite party.

 

 

(cont....6)

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Opposite party further contended that the said vehicle reported on 9.1.2014 for complaint of brake pipe leak, which was rectified by replacing the affected pipe. The complainant again came to the opposite party for replacing the second brake pipe suspecting that it will also fail in future. Eventhough the opposite party could not find out any service problem, as a courtesy measure and being a responsible service centre, replaced the same on 14.2.2014.

 

Opposite party further contended that as per records, the said vehicle was reported to them on 22.5.2014, complaining about the turbo charger. After inspection, the turbo charger was overhauled and necessary repair were done. Thereafter it was replaced under warranty on 1.7.2014. The complaint of turbo was not due to the manufacturing defect, but the same was due to improper driving habits.

 

Then regarding the mileage, the Focuz Motors have checked the mileage on 27.9.2014, when the vehicle was brought to them and the mileage at that time was 7.3 km.

 

Opposite party further contended that, whenever the vehicle was brought to them, they have promptly attended the complaints and rectified all the same complaints, to the satisfaction of the complainant. The complaints now alleged are the result of an afterthought, presumably to avoid the payments which he had to make towards the vehicle loan taken by him. Apart from the complaint regarding the turbo charger, all the complaints were not unusual for a vehicle which is extensively put to use. The road condition and terrain, when the vehicle is normally operated are also matter, which are much relevant, while considering the issue. The allegations that due to the repeated complaints, the complainant could not use the vehicle is incorrect. As per records, the vehicle had already covered 38744 km as on 2.2.2015. This itself will show that the same was being put to extensive use.

 

Opposite party further contended that the vehicle was not purchased from them and nor the same was manufactured by them. Whenever the vehicle was brought to the service centre of the opposite party, they have attended the complaints and carried out the repair by strictly following the instructions and terms of warranty stipulated by the manufacturer. Therefore no deficiency in service can be attributed to the opposite party.

 

In their reply version, 5^th opposite party contended that the complainant had personally selected the new vehicle from the yard of the opposite party

(cont....7)

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after inspecting the same and after being convinced of its performance and expressing satisfaction over the vehicle. After purchasing the vehicle, the complainant had approached this opposite party on 29.9.2014, for conducting mileage test, for the complaint that the vehicle was not giving the desired mileage. On conducting the mileage test in the presence of the complainant, it was noticed that the vehicle gave a mileage of 7.3 km/ltr. Then the allegation that the mileage of the vehicle was only 4 km/ltr is misplaced and without merit. Opposite party further stated that neither the opposite party not the manufacturer had at any point of time assured the mileage that a vehicle would give as mileage in a vehicle would vary from vehicle to vehicle depending upon the driving habits, condition of the road etc.

 

The opposite party has no way caused any loss to the complainant and as there has been no deficiency in service or unfair trade practice on their part, and the opposite party is in no way responsible to compensate the complainant.

 

In this case, along with the complaint, complainant filed an interim application for appointing an expert commissioner for ascertain the defect of the vehicle and to file report to that. After hearing the petition allowed and one Mr. Harikumar T., Motor Vehicle Inspector, Regional Transport Officer, Idukki appointed as the Expert Commissioner.

 

Evidence adduced by the complainant by way of proof affidavit and documents. Complainant was examined as PW1 and Exts.P1 and P2 and C1 marked. Ext.P1(series) are the copy of RC Book, driving licence and payment receipts. Ext.P2(series) are the copy of job cards. Ext.C1 is the expert commission report.

 

From the opposite side, one Manu V.V, engineer of 1^st opposite party and one Sreevalsan S.S, administrative officer of 5^th opposite party and expert commissioner were examined as DWs1 to 3 respectively. No documents produced.

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

 

(cont....8)

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The POINT :- We have heard the learned counsels of both sides and have gone through the entire records and have also perused the materials placed on evidence.

 

Learned counsel for the complainant has submitted before the Forum that the complainant purchased a new Tata SF 407 BS-III model LMV goods carrier mini lorry from 5^th opposite party, being the authorised dealer of 1^st and 2^nd opposite parties. On the first journey itself, it showed serious defects and on convincing the seriousness, the opposite parties replaced this vehicle to a new one of the same category. The second vehicle, which is the subject matter of the case, having serious manufacturing defects, approached 4^th opposite party, being the authorised service agent of 1^st and 2^nd opposite parties so many time within a short period of one year for recurring defects in brake jam, power steering fault broken brake fluid pipe, fuel injection pipe turbo charger etc. So many times 4^th opposite party replaced certain parts such as brake fluid pipe etc. and repaired turbo charger, fuel injection pipe, brake system, the defects persisted. Hence the complainant was not in a position to ply the vehicle. This affected his earnings seriously and caused much pain in his family. The recurring defects of the vehicle affected the day to day life of the complainant and his family. Due to the loss of income from the vehicle, complainant failed to remit the vehicle loan instalments.

 

The counsel further argued that, in addition to the recurring defects, the vehicle get only 4 km mileage, which is against the promise of 1^st and 2^nd opposite parties that the vehicle will get 8 km/ltr. With the help of an expert commissioner appointed by the Forum, complainant established his version. Hence the complainant proved his allegations with clear and cogent evidence.

 

The learned counsel further argued that on comparing the contention in Ext.P2 vehicle job reports and the findings of the expert commissioner in Ext.C1 commission report, it will be clear that the averments against the opposite parties are true and hence the all reliefs sought are allowable.

 

On the other hand, the learned counsel of the opposite parties vehemently argued that whenever the complainant approached the 4^th opposite party, the authorised workshop of 1^st opposite party, they attended it with due diligence and cured all the defects of the vehicle. On each such occasion, the complainant used to take the delivery of the vehicle after convinced of the work done and expressing sales factor over the same.

 

(cont....9)

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The learned counsel further argued that the opposite parties had at no point of time assured the mileage that a vehicle would give as mileage in a vehicle would vary from vehicle to vehicle depending upon the driving habits, conditions of the road, load of the vehicle, conditions of tyre etc. When the complainant taken the vehicle to the workshop of 5^th opposite party, with a complaint of low mileage, the service personnels of the 5^th opposite party had in presence of the complainant conducted a mileage test and the vehicle was found to give a mileage of 7.3 km/ltr. It is pertinent to note that on perusal of the report of the expert commissioner, would disclose that he had not given any reason with respect of his findings. It is a settled principle of law that the report of an expert commission has to contain cogent reasons with supporting data with respect to her findings.

 

By relying the judgement of the Hon'ble Supreme Court reported in AIR 1999 SC 3318, the counsel stated that, “the evidence of an expert is really of an advisory character and it is the duty of an expert to furnish necessary scientific criteria for testing the accuracy of the conclusions. So as to enable the judge to form his independent judgement by the application of the criteria to the facts proved by the evidence of this case. The credibility of such a witness depends on the reason stated in support of his conclusion and the data and materials furnished which form the basis of its conclusion.” A perusal of the above report would disclose that the same lacks any of the above mentioned details.

 

The counsel further argued that the warranty of the vehicle is subject to the terms and conditions prescribed by the 1^st opposite party. It has come out in evidence that the alleged complaint to the turbo charger was only on account of the complainant or his driver not following the guidelines regarding idling the vehicle after starting the same for one minute. In spite of violation of an express condition of the warranty, the 4^th opposite party has, as a gesture of goodwill, carried out the necessary repair to the turbo charges free of cost.

 

The counsel further pointed out that, complainant failed to prove the damages and loss caused to him as alleged with clear and cogent evidence. The onus is on the complainant to prove the alleged loss stated to have been sustained by him, and hence he is not entitled to either in law or on facts to claim any amount towards compensation.

 

On going through the evidence on record, the Forum come to a conclusion that the purchase of the alleged vehicle and its recurring defects are proved by the complainant through Ext.P2 job records and the Ext.C1 expert

(cont....10)

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commission report. In his report, expert commissioner categorically stated that when he is inspecting the vehicle as per the order of the Forum, the odometer of the vehicle shows 4046 km. The expert inspected the vehicle on 23.2.2015. At first, he conducted vehicle mileage test with permitted load and found that the vehicle is having a mileage of 4.627 km/ltr in loaded condition. When the vehicle was inspected in unloaded condition, the expert found that the vehicle is having an average mileage of 7.387 km/ltr.

 

In the reply version, all the opposite parties are highlighting the finding of the commissioner that, the vehicle is having a mileage of more than 7 km. At the same time, it is very pertinent to note that, the vehicle is meant of carrying goods in a permitted load and if any offer in mileage given by the manufacturer, we assume that it is the mileage of the vehicle with its permitted load. Hence the finding of the commissioner regarding the mileage of the vehicle with a permitted load is very low and it is fortifying the version of the complainant regarding the issue of low mileage. It is seen that expert commissioner prepared the expert report after inspecting the vehicle and after perusing the service history of the vehicle. In his report, the expert commissioner categorically stated that replacement of brake hose at kilometre reading 19320 and 19801 clearly shows the inferior quality of that part and it can be a manufacturing defect of that part.

 

The expert further reported that the turbo charger works and overhauling at 26844 km and turbo charger replacement at 30244 km clearly shows inferior quality of the product and it can be manufacturing defect of the part.

 

In page No.6 of this report, the expert commissioner further stated that crank shaft from the oil seal is seen replaced and it shows inferior quality of the product.

 

In page No.8 of Ext.C1 report, the commissioner stated that adjusting the brake shoes is seen done in every fifty to sixty days and every 2000 to 3000 km average eventhough the vehicle is fitted with automatic brake adjustment mechanism shows malfunctioning of automatic brake adjustment mechanism and this can be due to manufacturing defect of the mechanism. The commissioner further reported that replacement of crank shaft oil seal timing cover oil seal, pump gasket etc. indicate inferior quality of the product and can be due to manufacturing defect.

 

 

(cont....11)

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Eventhough the 1^st and 2^nd opposite parties filed detailed objection to the Ext.C1 report, no effort has been taken by them to counter the findings of the expert commissioner with the help of an expert from their side. Hence the finding of the expert commissioner can be considered and moreover it corroborates with the Ext.P2(series) job orders.

 

On evaluating the entire evidence in this case, Forum found that the defect of the vehicle in question does not recover despite several visits to the workshop. The vehicle had to be taken to workshop of dealer in a number of occasions with complaint of brake system, fuel pump, turbo charger, low mileage etc. The dealer made effort to remove the defects but the vehicle could not be made free from such defects. Contention made by the opposite parties that these defects are minor in nature, or due to the mishandling of the vehicle, cannot be accepted. Consumer cannot be expected to take vehicle to workshop in a number of occasions, unless these are defects in said vehicle. Defects in a vehicle may come under category of manufacturing defect or otherwise, a vehicle is said to be suffering from defect, if there is any fault, imperfection, or shortcoming in quality, quantity potency, purity or standard, which was required to be maintained under any law in force. If the dealer is failed to cure the defects of the vehicle, evenafter of their best effort, we can termed it as a manufacturing defect.

 

In this case, it is proved that the vehicle discussed above is having serious defects which cannot be cured and hence we found that the contention of the complainant is genuine and he proved it with clear and cogent evidence and he deserves to replace the vehicle as prayed for.

 

At the time of giving evidence, complainant deposed that the 3^rd opposite party financier confiscated the vehicle from his custody for settlement of vehicle loan dues before one year, from the date of adducing evidence. He added that the 3^rd opposite party has not changed the RC particulars of the vehicle from his name. This matter is not objected by the 3^rd opposite party. Hence it is seen that 3^rd opposite party is the custodian of the alleged vehicle and has not raised any claim of further vehicle dues. Hence 3^rd opposite party is directed to settle the loan account from the sale proceeds of the alleged vehicle.

 

Then regarding the loss incurred to the complainant while using the vehicle due to its recurring defects. Eventhough the complainant has not placed any evidence to prove the loss of income, on the basis of the evidence in record, we can assume that from the date of purchase of the vehicle, the complainant

(cont....12)

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suffered a lot of miseries and financial losses and mental agony due to the never ending defects of the vehicle. For that the complainant is entitled to get adequate compensation and since we found that the defects of the vehicle is exclusively a manufacturing defect, the manufacturer is alone liable to compensate the complainant. At the same time, complainant is not adduced any evidence to prove that whether he sustained any loss as alleged in the complaint.

 

On the basis of above discussion, complaint allowed in part. Opposite parties 1 and 2 are directed to pay Rs.3 lakhs as compensation for the mental agony suffered by the complainant due to the purchase of the said vehicle, along with Rs.25000/- as the litigation cost within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation. 3^rd opposite party is directed to settle the vehicle loan dues by adjusting the sale proceeds of the above said vehicle, within 30 days of receipt of a copy of this order. If any further vehicle loan dues is pending, 1^st and 2^nd opposite parties are directed to clear it.

 

Pronounced in the Open Forum on this the 26^th day of December, 2019

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Arun Ramakrishnan.

On the side of the Opposite Party :

DW1 - Manu V.V.

DW2 - Sreevalsan S.S.

DW3 - Harikumar T.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - copy of RC Book, driving licence and payment receipts.

Ext.P2(series) - copy of job cards.

Ext.C1 - expert commission report. Forwarded by Order,

On the side of the Opposite Party : Nil.

 

SENIOR SUPERINTENDENT