DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Smt. Rakesh Setia wife of Sh. S. K. Setia resident of House No.897, Sector 7-B, Chandigarh through Special Attorney Sh. J. S. Garg resident of House No.11, Sector 27-A, Chandigarh.

                                                                                    ---Complainant

V E R S U S

1.   M/s Tata Motors, Passenger Car Business Unit, 5^th Floor, One Forbes, Dr. V. B. Gandhi Marg, Mumbai – 400023.

2.   M/s Hind Motors (India) Limited, 15, Industrial Area, Phase I, Chandigarh. 

---Opposite Parties

BEFORE:            SH. LAKSHMAN SHARMA                   PRESIDENT

MRS.MADHU MUTNEJA              MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:            Sh. Raman Sharma, Advocate for the complainant.

                        Sh. P. K. Kukreja, Advocate for OP No.1.

Sh. Sanket Dhull, Advocate for Sh. Gagan Aggarwal, Advocate for OP No.2.

PER JASWINDER SINGH SIDHU, MEMBER

1)           Complainant has filed the present complaint against the Opposite Parties on the grounds that the complainant purchased a Nano Car from OP No.2 on 13.08.2010 on payment of Rs.1,43,130/- as per their Retail Invoice No.NAN/00536 dated 13.08.2010 (Annexure C-1) with Temporary No.CH-1(T) 7139 carrying one year warranty. Rs.4061/- were paid on account of insurance charges for which a cover note bearing No.DHD-D-91095 dated 13.08.2010 (Annexure C-2) of Oriental Insurance Company.

                It is claimed that the car in question started giving trouble within ten days of its delivery when its breaks failed during warranty period. On 23.08.2010, the car was taken to the workshop of OP No.2 and in the evening on the same day, it was given back after some minor repairs. While delivering the vehicle, it was disclosed that one more part needs replacement which was not readily available with OP No.2 and as the indent stands issued to the company, the same would be replaced as and when it is received from that end. However, it was advised that till then, the vehicle be used with care.

                The complainant alleges that on 11.09.2010, when the vehicle was in use, there was a sudden break down, its front wheels gave trouble and the vehicle ran into the foot path and stopped abruptly altogether. The works Manager of OP No.2 was informed accordingly who managed to lift the vehicle and since then, the vehicle is lying at the workshop of OP No.2. The complainant further claims that on 13.09.2010, a letter Annexure C-3 was given to the Works Manager explaining other defects in the vehicle as observed by the complainant. The Works Manager all together ignoring  this letter demanded copy of Driver’s Licence, Copy of cover note of insurance and some performas relating to Insurance Claim, which were handed over to him and since then, the vehicle is lying in the workshop and the same has not been repaired till date.

                The complainant claims that the OP No.1 has in numerous advertisements claimed that the petrol Nano Car gives an average of 23.6 KMPL but during the use of the said car in question, the complainant experienced that the vehicle in question did not give an average beyond 12 KMPL.

                The complainant further claims that an undated letter was received from one Sh. V. K. Ghai, Customer Relation Manager of OP No.2 (Annexure C-5) calling for approval to shift the car from Chandigarh Workshop to Panchkula Workshop and also disclosing that the job did not relate to warranty. The complainant claims that the OP No.2 through this communication had made its intentions clear that they neither were ready to set the vehicle right or to replace the defective vehicle so supplied to the complainant. The complainant further claims that no assurance was also handed out to him in response to his letter dated 13.09.2010.

                The complainant claims that this attitude of OP No.2 is against the set norms of relationship of dealer and customer and she is left with no choice but to claim the amount of investment made on purchase of this vehicle. Accordingly, the complainant served a legal notice upon the OPs. The same was responded by OP No.2 but no response was forthcoming from the side of OP No.1.

                The complainant aggrieved of the stand taken by the OPs has filed the present complaint seeking following relief: -

(a) Directions to OPs No.1 and 2 to accept the defective vehicle and pay Rs.1,43,130/- plus Rs.4,061/- paid against insurance along with interest.

(b) To Pay Rs.50,000/- as compensation for harassment and mental agony on account of non use of vehicle;

(c)  To Pay Rs.20,000/- as costs of litigation.

2)             The OPs have contested the claim of the complainant by filing their separate replies taking preliminary objections to the effect that as the OP No.2 is the Dealer of OP No.1 (Manufacturer) and as per their disclosure in Para No.10 of their reply, it is made clear that the relationship between the two, is on “Principal to Principal Basis” and all the acts of omission and commission of OP No.2 cannot be attributed to OP No.1 and it cannot be held vicariously liable for the same. However, while giving a detailed reply in support of its credentials, OP No.1 claims that the problem with the vehicle is merely with regard to its normal use and wear and tear, which is covered under the warranty clause. In support of its stand, OP No.1 placed reliance on the judgment of Hon’ble National Commission rendered in the case titled Hind Motors India Limited Vs. Marwah Parmod Kumar, Revision Petition No.3315 of 2004.

3)             However, OP No.2 in its reply has categorically stated that the complainant is not a consumer as per the definition under Section 2(1)(d) of Consumer Protection Act, 1986. It is also mentioned that the complainant has not brought on record any expert opinion in order to corroborate his allegations of any manufacturing defect in the vehicle in question, hence, such allegations are not tenable and deserves to be ignored. The OP No.2 also claims that the performance of the vehicle is always in a manner in which the vehicle is being used. The normal wear and tear of the said vehicle is repairable and the spare parts can be replaced as and when the need arises. The OP No.2 claims that the allegation of the complainant with regard to the fuel consumption of the vehicle in question was raised for the first time through its written communication but at the same time, it offers to look into the same and satisfy the complainant about the performance of the vehicle in question.

                The entire reply of OP No.2 has failed to address the allegation of the complainant where it is alleged that the vehicle in question had developed a problem with its breaks and while doing minor repairs on 23.08.2010, allowed the vehicle to leave its premises without totally satisfying itself about its performance. The allegation of the complainant that while taking the delivery of the vehicle, he was asked to use the same with care as the replacement of the required spare part was yet to be made. While replying to this Para of the complaint, OP No.2 claims that no expert opinion is brought on record so as to corroborate the story as concocted by the complainant.

                The OP No.2 claims that the issue involves an accidental vehicle and the same is not covered under the warranty as offered by the company and this issue was answered and conveyed by it through its communication, which is admitted by the complainant in para No.5 of his complaint. Thus, denying any deficiency on their part, OPs prayed for dismissal of the complaint with exemplary costs.

4)             Parties led their respective evidences.

5)             Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

6)             The present complaint primarily involves two main issues firstly the Complainant claims that the car in question had a problem with its brakes and the said car was taken to the workshop of OP No.2 on 23^rd Aug., 2010, immediately after 10 days of its purchase as mentioned in para 2 of the present complaint. At that point of time few small repairs were done but a spare part which was not readily available with OP No.2 was not replaced and the Complainant was asked that an indent stands issued to the company and it would be replaced as and when it is received from that end. The Complainant was advised that till then the vehicle be used with care.

7)             The Complainant claims that on 11.9.2010 the vehicle while being taken to the workshop of OP No.2 and that too on its invite met with an accident and the happening of this accident is attributed to the same problem which was left unattended by the employee of OP No.2. We have gone through the entire reply/version of OP No.1&2 as well as the reply of OP No.1 to the legal notice of the Complainant. Both the OPs have skirted the issue involved and the allegation of the Complainant as mentioned in para no.2 of his complaint. The OP No.2 who had actually made the necessary repairs of the vehicle in question within ten days of its sale have failed to bring on record any document either to deny or admit the fact that the vehicle was presented at their Workshop for the repairs on the said date of 23.8.2010. It is difficult for us to comprehend as to from what source the entire reply of the OPs is generated if they do not want to disclose the details of the happening of an event in their own premises. As such the allegations of the Complainant as mentioned in para 2 stand as it is and in the absence of any defence from the side of OPs the same is believed in its entirety. As the Complainant has filed an affidavit in support of her averments and has further fortified her complaint by filing replication contesting the contents of the replies of OP No.1 and 2. The deafening silence of OPs on this issue is to be construed against them. Hence OP No-1 is held deficient in service on this count. 

8)             Though the OP No.1 has filed Annexure OP-2/1 which is a document on the letter head of OP No.2 and is authored by one Mr. Ramesh Bansal claiming himself to be the workshop Manager of OP No.2 citing his experience of 27 years in the field of automobile repairs. While submitting this document, it is also disclosed that the entire repair of the vehicle can be done at an approx. cost of Rs.9814/- as mentioned in para 3 of Annexure OP-2/1. Even in this document, no mention is made about the happening of events on 23.8.2010. At the same time the entire status of the vehicle after the accident is mentioned without getting into the detailed reason for the happening of the accident.  Whereas in the reply to the legal notice of the Complainant the happening of the accident is attributed to the manner in which the vehicle was being driven by the driver at the time of the accident.

9)             The OP No.2 in reply to the legal notice has mentioned that however, whenever the vehicle in question was brought to the workshop the same was maintained by the OP No.2 under the warranty terms extended by the manufacturer. While filing the version the OP No.2 failed to bring on record even a little shred of paper to prove that as to on how many occasions the said vehicle was brought for repair and a satisfactory work was done on each such occasion. In the light of these observations, we feel that the defence taken by both the OPs cannot be believed. The act of the OP No.2 allowing an un-repaired vehicle to leave its premises in a non-roadworthy condition is an act of deficiency in service on its part. As per the averments of the complaint the vehicle was taken for repairs of failure in  brakes and in such a circumstances if the highly trained officials of OP No.2 allow a vehicle with faulty brakes to leave its premises are not only falling short in their responsibility but are also putting to risk the life, limbs and property of not the Complainant alone, but the general public at large.  Such an act should not go unaddressed and we find OP No.2 liable for the damage to the vehicle that met with an accident due to unattended faulty brakes.

10)           The second issue on ground of which the Complainant has demanded the entire cost of the vehicle is with regard to the non-performance of the vehicle in terms of its fuel efficiency as promised at the time of its sale. The Complainant has raised this issue by writing a letter dated 13th Sept., 2010 i.e. after two days of the happening of the accident and when the vehicle was already lying in the workshop in a non-functional condition.  The Complainant has not explained that in what manner she has calculated the average of the vehicle to be around 10 KPL. Though it is mentioned in the last lines of her communication (Annex.C-3) disclosing that in first five days of its purchase the average was only 10 Kms and in the next days it was only 12 Kms per liter. The Complainant has not brought on record any evidence in this regard to fortify her observations. At the same time the offer of the OP No.2 with regard to this issue is very much open as it has volunteered to satisfy the Complainant about the performance of the vehicle while citing different reasons like driving skills, road conditions, adequate tyre pressure and periodical services attributing towards the variation in the fuel efficiency of any vehicle. These facts are mentioned in para 6 of the reply to legal notice as well as para 4 of its version / reply. 

11)           The allegation of the Complainant about the shortfall in fuel efficiency of the car does not hold ground as there is only a one sided view which is available on the file. We feel that in the absence of reliable evidence in the shape of an independent expert opinion in this matter it would not be prudent to move any further on this issue. Hence, under such circumstances we do not find any merit in these allegations of the Complainant and the same are ignored altogether. In these circumstances, the present complaint qua OP No.1 fails and the same is dismissed against it.

12)           As per the observations mentioned above, we partially allow this complaint and direct the OP No. 2 to repair the vehicle in question on its own cost. We also saddle the OP No.2 to pay Rs.20,000/- as compensation and Rs.7,000/- towards costs of litigation.

13)           This order be complied with by the OP No.2, within a period of 45 days, failing which the aforesaid amount of Rs.20,000/-, except litigation costs, would attract penal interest @18% per annum from the date of order till it is actually paid.

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

Announced

22^nd February 2012.                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER