DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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M/s Stove Kraft Pvt. Ltd., 307/2, Village Bhuran Wala Road, P.O. Barotiwala, Tehsil Kasauli, Distt. Solan, through its Manager Sh. Amit Aggarwal.

                   ---Complainant

Vs

[1]  M/s TATA Motors, Registered Office Bombay House, 24, Homi Mody Street, Fort, Mumbai 400001, through its Managing Director.

[2]  M/s TATA Motors, Regional Office, SCO No. 170-171-172, 1^st Floor, Sector 17-C, Chandigarh, through its Regional Manager.

[3]  M/s Hind Motors (India) Limited, Authorized Dealer TATA Motors, # 9 & 15, Industrial Area, Phase-I, Chandigarh, through Customer Relations Manager/ Works Manager.

[4]  M/s IFFCO-TOKIO General Insurance Co. Limited, Corporate Office, 4^th and 5^th Floor, Iffco-Tower, Plot No.3, Sector 29, Gurgaon (Haryana) 122001, through its General Manager.

---- Opposite Parties

BEFORE:    SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Rajiv Sharma, Counsel for Complainant.

Sh. Devinder Kumar, Proxy Counsel for Sh. P.K. Kukreja, Counsel for Opposite Parties No. 1 and 2.

Sh. Devinder Kumar, Proxy Counsel for Sh. Gagan Aggarwal, Counsel for Opposite Party No.3.

Ms. Jaimini Tiwari, Proxy Counsel for Sh. Rajneesh Malhotra, Counsel for Opposite Party No.4.

PER MADHU MUTNEJA, MEMBER

1.        The Complainant had purchased an Indica Vista Car on 1^st October, 2008 from M/s J.P. Motors at Solan (H.P). The vehicle was running normally and the last service was carried out by Opposite Party No. 3 on 29.5.2010. However, on 18.6.2010 the car started giving trouble of pick-up and would not gain speed on acceleration. Accordingly, it was brought to Opposite Party No.3 for check-up on 21.06.2010. The Complainant was informed by Opposite Party No.3 that the engine would have to be opened to know the exact cause of the problem. The Complainant was also told that the engine needed overhauling as the vehicle seemed to be hit from the bottom. Opposite Party No.3 accordingly advised the Complainant to inform the insurance company. A rough estimate of Rs.97,200/- was given for repair. The Complainant accordingly sent intimation to the insurance company. A Surveyor was appointed by the insurance company, who after checking the vehicle, informed the Complainant that as there was no exterior damage to the vehicle, hence, no claim was payable (Annexure C-2).

          The Complainant accordingly contacted Opposite Party No.3 for payment of the claim under warranty. Meanwhile, as the engine of the vehicle was lying dismantled, the Complainant also gave consent for repair of the same vide letter dated 7.7.2007. It was also given to understand by Opposite Party No.3 that the matter was being pursued with TATA Motors to repair the vehicle under warranty or settle the bill at 50% sharing basis. Unfortunately, the Complainant was eventually informed by Opposite Party No.3 that Opposite Parties No.1 and 2 have refused to settle the claim as per warranty and hence, the Complainant was required to pay the bill of Rs.1,29,048/-. This amount was deposited by the Complainant with Opposite Party No.3 under protest (Annexure C-3 to C-5).

          Alleging deficiency in service on the part of the Opposite Parties No.1 to 3 for not repairing the vehicle under warranty in case there is no external damage to the vehicle; and Opposite Party No. 4 for not accepting the claim of the Complainant, the Complainant has filed this Complaint with a prayer that the Opposite Parties No.1 to 4 be made to pay the bill amount, along with compensation and cost of litigation.

2.        After admission of the complaint, notice was sent to the Opposite Party.

3.        Opposite Parties No.1 and 2 have submitted that the cars and vehicles manufactured by them pass through stringent quality checks and road trials before being dispatched to the various Dealers. The dealer (Opposite Party No.3) has an excellent workshop for after sale service of vehicles. Every procedure for service/ check-ups is standardized as per requirements. Also, the Manufacturers of the vehicles and the vehicle owners are bound by the terms and conditions of the warranty policy applicable for the vehicles. The allegations of the Complainant have been denied by the answering Opposite Parties by taking certain preliminary objections that the Complainant is not a consumer as per the Consumer Protection Act, 1986; and the averments made are vague, baseless and with malafide intent. According to the Opposite Parties No.1 and 2 the vehicle has been used for commercial purpose to generate profit and has covered 54939 Kms as on 18.10.2010. The answering Opposite Parties have quoted judgments to prove that if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the Consumer Protection Act.

          As per the recommended service schedule given in the Operator’s Service Booklet, the owner of the vehicle is advised to follow certain guidelines for smooth and better performance of the vehicle. There were instances of maintenance and operational faults noticed by the Opposite Parties during free servicing of the car as well as on paid service. As per warranty clause, the warranty is limited to 18 months from the date of sale of vehicle or 50000 Kms whichever is earlier. The warranty does not cover normal wear and tear of the vehicle or the parts or any damage due to negligent or improper operation. 

          On merits, Opposite Parties No.1 and 2 have reiterated the submissions given above. They have also submitted that the Complainant has not brought on record any documentary proof in support of its contentions. Also, the Complainant has not placed on record any alleged estimate of Rs.97,200/-. Again, the Complainant has not paid any consideration to Opposite Parties No.1 and 2 for providing service. As per Annexure C-2 placed on record by the Complainant, the vehicle was hit by a rock while driving on Baddi Pinjore stretch. However, there is no supporting evidence on record for this averment. The answering Opposite Parties have further submitted that they are not liable to pay any amount to the Complainant if the insurance claim is not passed and there is no scheme for accepting 50% of cost of repairs. Denying all other allegations of the Complainant and stressing that the vehicle does not have any manufacturing defect, as well as the fact that the Complainant has not placed on record any expert record to establish the defect, Opposite Parties No.1 and 2 have prayed for dismissal of the Complaint.    

4.        Opposite Party No.3 in reply has also taken preliminary objection that the Complainant is not a consumer as the vehicle is being used for commercial activity. Also the vehicle has already covered a distance of 58249 Kms in the last 2 ½ years and the Complainant is availing the services of Opposite Party No. 3 and is fully satisfied. When the vehicle was brought for the accidental repair, it had covered 52700 Kms. The Complainant had issued a satisfactory note in favour of Opposite Party No.3 while taking delivery on 16.8.2010. Opposite Party No.3 had clearly told the Complainant at this time that the problem was due to damage in the oil sump from the bottom for which the engine needed to be overhauled. The vehicle had been hit by some external force, due to which it was not covered under warranty. The customer was guided to approach the insurance company for the claim. The claim was repudiated by the insurance company (Opposite Party No.4). The claim was also rejected by Opposite Parties No.1 and 2 (manufacturer). Even though there were many other Workshops available, the Complainant opted to get the vehicle repaired from Opposite Party No.3 only. The repair was carried out as per the instructions of the Complainant. Opposite Party No. 3 has submitted that due to the accident, the warranty has lapsed as per Condition NO. 7 of the warranty Card, hence no repair can be done free of cost. The relevant warranty clause is as under: -

“7.        This warranty shall be null and void if the car is subjected to abnormal use such as rallying, racing or participation in any other competitive sport. This warranty shall not apply to any repair or replacements as a result of accident or collusion.”   

          Opposite Party No. 3 has also taken the objection that the Complainant has not placed on record any expert opinion or documentary proof to show that the vehicle has any inherent defect.

          On merits, Opposite Party No. 3 has reiterated the submissions already taken in the preliminary objections. They have admitted the repair of the vehicle of the Complainant, as well as the estimate and bill given for repair. The car was repaired after receiving the approval from the Complainant. Opposite Party No. 3 has, therefore prayed for dismissal of the Complainant.

5.        The Opposite Party No.4 in reply has also taken the preliminary objection that the Complainant is not a consumer as it is a commercial activity. Further, as per the report of the Surveyor, when the engine was dismantled, it was found that there was no crack in the oil sump. As per the statement of the insured some sound was coming from underneath the car which was heard while driving. It was taken as a minor issue, but the car engine stalled after driving for some time. The Surveyor had recommended that the claim be treated as invalid as the damage to the engine does not confirm to proximity clause. The claim was accordingly repudiated vide letter dated 31.07.2010 (Annexure R-4). 

          On merits, Opposite Party No. 4 while reiterating the above submissions has admitted the issuance of policy to the Complainant. The surveyor report is also part of the record and repudiation has been made in accordance with the surveyor report. Opposite Party No. 4 has, therefore, prayed for the dismissal of the complaint by submitting that no amount is payable against the claim.

6.        Parties led evidence in support of their contentions.

7.        We have heard the learned counsel for the parties and have perused the record.

8.        The case of the Complainant is that its TATA Indica vista Car, manufactured by Opposite Parties No. 1 and 2, developed a fault, which was diagnosed by Opposite Party No.3 as an accident. When the Complainant approached Opposite Party No. 4 for claim against the accident, the claim was denied in accordance with the report of the Surveyor, on the following ground: -

“At the time of inspection it was observed that this is a case of consequential damage.”

In the light of the above, we regret to inform you that your claim is not tenable and we are closing the case as “No Claim”.

          After rejection of the claim by the insurance company, the Complainant took up the matter with the Opposite Parties No.1 to 3 for payment of the amount under the warranty clause. Opposite Parties No.1 to 3 denied the claim, hence, the Complainant preferred to file the instant complaint.

9.        All the Opposite Parties have taken the preliminary objection that the Complainant is not a consumer under the Consumer Protection Act, 1986 as the car is being run for commercial activity. However, no commercial activity in the running of the car has been proved by any of the Opposite Parties. This contention therefore is untenable.

10.       The Complainant is claiming a sum of Rs.1,29,048/- along with compensation from the Opposite Parties against the warranty clause. However, the Complainant has not placed on record the warranty booklet to substantive its claim. As per the Complainant the car was purchased on 1st Oct., 2008 (even though the bill is not on record) and it was brought for repair to Opposite Party No. 3 on 21.6.2010, which is almost 1 year and 10 months after the date of the purchase. In the absence of the service booklet, it is not determinable by this Forum whether the damage to the car claimed by the Complainant is covered under the terms and conditions of warranty and hence payable by the Manufacturer/Dealer.

11.       The Opposite Parties No.1 to 3 have denied the claim of the Complainant by referring to the warranty clause No. 7 (reproduced above), under which the claim is not payable if the car is accidented. Opposite Party No. 4 has stated that no apparent accident seems to be the cause for the damage to the vehicle. They have also stated that warranty is limited to 18 months from the date of sale of vehicle or 50000 Kms whichever is earlier. According to them the car has covered 52939 Kms. This averment has not been denied by the Complainant. The Opposite Parties have also taken the contention that the Complainant has not placed on record any expert opinion to substantiate its claim. The Complainant is only relying on the terms and conditions of the insurance policy, as well as warranty (copy of which is not on record) to substantiate in claiming the amount paid for repair of the vehicle. But in the absence of any cogent documentary evidence, we cannot pass orders in its favour.  

12.       Hence, to our mind, looking at the entirety of the situation, the Complainant has not been able to prove any allegations against the Opposite Parties. The warranty/ service book by Opposite Parties No.1 and 2 is not on record to prove that the amount spent on repair is payable by them. There is no allegation of bad repair or deficiency in service by Opposite Party No.3 in repair of vehicle. The Surveyor appointed by Opposite Party No.4 has maintained that the claim is not payable as there is no external damage to prove an accident. Opposite Party No.4 has accordingly repudiated the claim. The complaint is, therefore, dismissed with no order as to costs.

13.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17^th September, 2012.                                              

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER