COMPLAINT FILED ON: 29.07.2009

DISPOSED ON:11.11.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

11^th DAY OF NOVEMBER – 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA             MEMBER    

                         SRI. A. MUNIYAPPA                 MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties 1 & 2(herein after called as O.Ps) to replace the subject vehicle or to refund sum of Rs.8,50,000/- with interest at 15% p.a., to direct the OPs 1 to 3 to pay damages of Rs.3,60,000/-towards expenses incurred and Rs.3,00,000/- damages towards mental agony and suffering on the allegation of unfair trade practice and deficiency in service on the part of the OPs.

2. The case of the complainant to be stated in brief is that:

        The complainant purchased motor vehicle namely Tata Safari Dicor bearing chassis No.403063, ESZ No.9037, Engine No.06ESZ 856 554 manufactured and marketed by the OPs 1 & 2 for valuable consideration of RS.8,50,000/- in the year 2007. The vehicle was got registered through concerned RTO bearing Registration No.KA05 ME 6087. The Op3 is authorized dealer and service point of Tata Motors Limited and accordingly, the complainant used to get the above said vehicle serviced through the OP3. The complainant got two free services done by the OP3 and the third free service was on 11.02.2009 and the same was attended and delivered and on 12.02.2009. The complainant took the vehicle to his residence on the next day he found there was leakage of engine oil from the engine of the vehicle, he informed the same to OP3, OP3 directed to send the vehicle for necessary inspection, on the next day, accordingly the complainant delivered the vehicle to OP3 on 14.02.2009 with the above said complaint leakage of engine oil. The OP3 kept the vehicle for necessary repairs and observations till 17.02.2009 and redelivered the vehicle with an assurance that, the entire complaint was attended and repaired. Again the vehicle was found that there was abnormal excess noise in the engine and which noise was emitted from the engine which is not the sound which was normally found during the course of running, as such the complainant informed OP3. OP3 requested to deliver the vehicle for further check up and accordingly, the vehicle was delivered on 18.02.2009. OP3 inspected the vehicle there was abnormal excess noise/sound in the engine and then directed the complainant to leave the vehicle for observation for a period of three days and accordingly, the complainant delivered the vehicle to the custody of OP3. OP3 after end of three days told the complainant that the necessary repairs were done and instructed to run the vehicle for a period of one week. The complainant used the vehicle but there was no improvement or change in the noise of engine. The complaint was lodged before the General Manager of the third OP, the General Manager after inspection directed the complainant to run the vehicle for a minimum of one thousand kilometer, thereby the defect will be set right, the vehicle for a distance of one thousand kilometer, accordingly complainant used the vehicle for a distance of one thousand Kilometer, but there was no change in the excess sound emitting from the engine. The complainant on 24.03.2009 left the vehicle for further attending the repairs with OP3. OP3 took the vehicle to it’s custody assured to report the same to Ops 1 & 2 and further told that there must be some manufacturing defect in the engine as such it needs attendance of the manufacturer. OP3 kept the vehicle with it till 31.03.2009 and told that, on various inspection of the vehicle with concerned experts, there was damage to the valve-tappet and cam-gear and it required replacement of the said parts and further represented that, the damaged parts were replaced with the new parts. The vehicle was delivered on 31.03.2009, the complainant after taking delivery of the vehicle took a ride and found that, the defect as complained earlier still persisted without any improvement. On and after 31.03.2009 the complainant observed the said noise as it was earlier and emitting of the excess noise has caused immense disturbances and informed the third OP, OP3 in turn informed the complainant that, if the vehicle is in running conditions for a week, the same will be alright as the OP3 has replaced with a new parts and the same was given by OP3 in writing. Even after one week of running the vehicle, there was no improvement and excess noise/sound has been in its original state. The complainant again approached the OP3 but OP3 washed off its hand by telling that, there was some manufacturing defect in the engine, which will be rectified by OPs1 and 2 Manufacturer. The complainant purchased the vehicle on the assurance and proclamation of OP1 & 2 that the vehicle was manufactured with all advanced technologies and the vehicle is trouble free one and free from all manufacturing and other defects and with 30 months of extended warranty plus manufacturer’s warranty, as such the purchaser will be in peace of mind. The complainant is now in a disturbed state of mind in view of excess of noise emitting from the engine which is caused mental agony and tension to the complainant while driving. The vehicle is not safe in view of the sound being emitting from the engine and the OPs never gave any specific reason for the said emission of the sound. The OP3 has not taken care to find out the fault in the engine and to repair the same, thereby the 3^rd OP has caused deficiency of service. The complainant caused legal notice dt.22.04.2009, the OPs 1 and 3 given reply assuring to attend the grievances, but they have not taken further steps. The complainant purchased the vehicle by private borrowings and by investing his own funds, for the personal use, as he requires the vehicle for his day to day transport and business purpose. In view of the defect in the engine, the complainant is unable to use the vehicle, as such he is depending upon private taxies incurring expenses of Rs.3,000/- per day commencing from 31.03.2009. The complainant has suffered mental agony, harassment, loss of work and the compensation is assessed at Rs.3,00,000/-. The OPs 1 to 3 have committed act of deficiency of service in not keeping up the promise, having sold the vehicle which had manufacturing defect and further having not attended the complaints in time. Hence the complaint.

3. OPs 1 and 2 filed Joint Version and OP3 has filed version. All the three OPs have taken identical contention in the version. It is contended that the complainant has not come to this Forum with clean hands. The complainant has chosen to keep away valuable information with a view to make unfair gain. It is admitted that the vehicle was left for third service with OPs on 12.02.2009. However, the complainant has conveniently omitted the status and condition of the vehicle prior to the 3^rd free service. The vehicle was brought for the 1^st free service on 25.01.2008, for 2^nd free service on 08.08.2008 and the vehicle was serviced and delivered to the complainant in excellent condition. Subsequently on 21.09.2008 the vehicle reported for accident repairs and the complainant has conveniently chosen to omit this detail with a view to make unfair gain and in the process tarnish the image of the OPs. As the vehicle suffered from accident damage, it was attended by the OPs who affected accident repairs inclusive of tinkering, paining etc and complainant had personally paid for the same. Subsequently, the vehicle came in for its 3^rd free servicing on 12.02.2009. The vehicle was serviced as per the regulations of 3^rd free service and was delivered back to the complainant in excellent condition. The complainant after taking delivery of the vehicle, called back alleging oily and was requested to bring back the vehicle for inspection. The vehicle was brought on 14.02.2009 and the same was thoroughly inspected, as a matter of abundant caution the engine sump gasket was replaced free of cost and kept under observation of 2 days and thereafter having found no oil leakage whatsoever, the vehicle was returned to the complainant after test drive along with him. The other allegation at Para -4 of the complaint are denied as false. It is admitted that the complainant’s complaint of excessive noise in the engine and was requested to bring the vehicle for inspection. When the vehicle reported, it was test driven and the service engineers did not find any unusual noise and the same was communicated to the complainant. However, the complainant was adamant that there was a noise when he drove the vehicle and demanded that the same be re-checked and the vehicle was test driven by Senior Engineers and experts of the OP who did not find any unusual noise as reported by the complainant. Subsequently, the complainant was called to inspect the vehicle and after test drive took delivery of the vehicle suggesting that he was satisfied on the status and performance of the vehicle. However, OP was shocked when the complainant again brought back his vehicle making similar allegations of unusual noise in the engine. Again service engineers of the OP took the vehicle for test drive and found that there was no unusual noise suggested by the complainant. However the complainant was adamant and demanded that the vehicle be taken in for further inspection. As it was a repeat complaint the Op obliges and took in the vehicle for inspection and observation although now existed when the vehicle was left for inspection. The experts, engineers of the manufacturer also inspected the vehicle and did not find any unusual noise. The vehicle was redelivered to the complainant in excellent condition. The complainant never came back as alleged in Para-9 of the complaint and neither of the OP expressed helplessness suggesting manufacturing defect in the engine. The alleged engine and engine noise are in perfect conformity with the manufacturers standards and the same has been checked and verified by the OP and also the manufacturers. The vehicle does not suffer from any defect or abnormal noise. There is no manufacturing defect or deficiency in service. The vehicle was promptly and satisfactorily serviced as is indicated by the Job Cards. The question of replacing/refunding the price or paying damages does not arise. Hence, it is prayed to dismiss the complaint.

4. The complainant in order to substantiate complaint averments filed affidavit evidence and additional affidavit, produced documents. The Authorized Signatory and Customer Support Manager Shafiq Ahamed filed affidavit evidence on behalf of OP1 and 2 in support of defence version and produced documents. R.Shivaji, authorized signatory and Head-Administration and Facilities of OP3 filed affidavit evidence in support of the defence version.

5.The complainant written arguments in the form of Synopsis of Arguments.

6.Arguments on both sides heard.

7. Points for our consideration are:  

      Point No.1:- Whether the complainant proved

                         unfair trade practice and deficiency

                           in service on the part of the OPs?

Point No.2:- Whether the complainant is entitled

                   for the reliefs now claimed?

       Point No.3:- To what Order?

8.     We record our findings on the above points are:

Point No.1:- Negative.

Point No.2:- Negative.

Point No.3:- As per final Order.

R E A S O N S

The undisputed facts are that in the year 2007 the complainant purchased motor vehicle namely Tata Safari Dicor manufactured and marketed by OPs 1 & 2 through M/s Manipal Motors Private Ltd., Bangalore for Rs.8,50,000/-. The said vehicle was registered through concerned R.T.O. bearing registration No.KA05 ME 6087. OP3 is the authorized Dealer and Service point of Tata Motors Limited. The complainant got first two free services for his vehicle from OP3. The vehicle was taken for 3^rd free service on 11.02.2009 to OP3, after service the vehicle was redelivered to the complainant on 12.02.2009.

        The complainant claims that after the 3^rd free service, on the next day when vehicle was taken from the garage, he found that there was leakage engine oil from the engine of the vehicle; the vehicle was delivered to OP3 on 14.02.2009 with the said complaint i.e., leakage of engine oil. OP 3 took the vehicle on 14.02.2009 and kept the same for repairs and observation till 17.02.2009 and redelivered the vehicle to te complainant. After taking the delivery when the complainant was driving the vehicle he found there was abnormal excess noise in the engine, the same was informed to the Op3 and the vehicle was taken back to OP3 and left for attending that complaint on 18.02.2009. OP3 retained the vehicle for 3 days for observation and then redelivered the vehicle to the complainant stating that necessary repairs were done with an instruction to run the vehicle for a period of one week. Accordingly, the complainant claims that he used the vehicle but thee was no improvement or change in the noise of the engine, the same was informed to the OP3. The complaint was also lodged before the General Manager of Op3. The General Manger instructed the complainant to run the vehicle for a minimum of one thousand kilometer; thereby the defect will be set right. Even after using the vehicle for a distance of one thousand kilometer, there was no change in the excess sound emitting from the engine. Thus the complainant claims that again on 24.03.2009 he left the vehicle for further attending the said repair with the third OP. OP3 took delivery of the vehicle and informed the complainant that there must be some manufacturing defect in the engine and it needs an attendance of the manufacturer. The vehicle was kept with OP3 till 31.03.2009 and Op3 informed the complainant that there was damage to the valve-tappet and cam-gear and it required replacement of the said parts, the damaged parts were replaced with the new parts. The vehicle was redelivered to the complainant, the complainant found that the defect as complained earlier still persisted without any improvement. Thus the complainant claims that there was some manufacturing defect in the engine as informed by OP3 and the same is to be rectified by Manufacturer i.e., OP1 and 2. Thus it is contended that the vehicle was purchased on the assurance of OP1 and 2 that the same was Manufactured with all advanced technologies and the vehicle is trouble free one and free from all manufacturing and other defects and with 30 months of extended warranty plus manufacturers warranty, As against the said assurance the excess noise emitting from the engine which is causing mental agony and tension to the complainant while driving the vehicle. OP3 has not taken care to find out the fault in the engine and to repair the same. Thereby there is deficiency in service on the part of the OP3. For the legal notice dt.22.04.2009. OP1 and 3 have given reply assuring to attend the grievances but they have not taken any further steps. OP3 has given untenable reply. The complainant claims for replacement of the brand new vehicle or to refund sum of Rs.8,50,000/- with compensation. The defence of the OPs is though the complainant brought the vehicle with a complaint of excessive noise in the engine but the service engineers did not find any unusual noise. All the engine parameters rechecked the vehicle was test driven by Senior Engineers and experts of OP3 and also the experts and engineers of the Manufacturer, they did not find any unusual noise as complained. Thus it is stated that the vehicle was redelivered to the complainant in excellent condition on 31.03.2009. Subsequently, the complainant never came back with that complaint and OPs have not expressed their helplessness, there is no manufacturing defect in the vehicle.

OPs produced the job card-workshop copy with regard to fourth service of the vehicle attended on 19.11.2009 during the pendency of this complaint and also instant feed back form bearing signature of the complainant. The complainant has not complained anything about the excess noise when he had brought the vehicle for 4^th service on 19.11.2009 as per the job card. The instant feed back furnished by the complainant reveals that he was satisfied with the performance of the workshop in servicing the vehicle and satisfied with over all service experience. In case if the vehicle continued with the same defect of emitting excess noise from the engine, the complainant could not have failed to mention the same when the vehicle was brought for 4^th service. The affidavit filed by the complainant on 10.02.2011 stating that he had left the vehicle for 4^th free service on 12.03.2010 with OP3 and on the said date he made a complaint with regard to the excess noise in the engine but OP3 refused to mention the same in the job card cannot be accepted. The vehicle was left for 4^th service on 19.11.2009 but not on 12.03.2010 as stated in the affidavit of complainant. At the time of 4^th service the vehicle had run 20,167 Kilometers as per the job card. At the time when the vehicle was redelivered to the complainant on 31.03.2009 the vehicle had run 16,142 Kilometers as per tax invoice. Thus it becomes clear that the complainant has used the vehicle after 31.03.2009 and it was brought to 4^th service on 19.11.2009 and vehicle has covered the distance of about 4 thousand  Kilometers, during this period.

9.There is no any expert opinion report regarding any manufacturing defect in the engine of the vehicle. Without the experts opinion it is difficult to accept the case of the complainant that there is a manufacturing defect in the engine of the vehicle. As per the complainant’s case, the complainant found abnormal noise in the engine of the vehicle only after 17.02.2009, till then there was no any complaint about the abnormal noise. If there was any manufacturing defect in the engine the vehicle could not have run smooth till 17.02.2009 when it was attended 3^rd free service. The complainant has not produced any material to show that OP3 informed him that there is manufacturing defect in the engine of the vehicle.

10. The learned counsel for the complainant contended that as per the feed back dt.31.03.2009 the complainant has clearly mentioned that the vehicle engine noise still persists and now having worked on the vehicle concord motors officials have advised once again for a running for a duration of one week and hence the complainant agreed subject to the vehicle for observation. Even after if the problem persists officials have assured for further action to solve this problem under those conditions the vehicle was taken to the custody of the complainant. On the basis of this feed back it becomes clear that even after attending the complaint the engine noise still persisted. Thereafter, the OP3 expressed inability to attend the repairs. In our view, in case if the excess noise emitting from the engine till persisted subsequent to 31.03.2009 the complainant could not have failed to mention the same when the vehicle was taken for 4^th service during the pendency of this complaint on 19.11.2009. Therefore, we are unable to accept that still the vehicle engine emits excess noise and the complainant is unable to make use of the vehicle since 31.03.2009. 

11.As per vehicle inspection report dt.31.03.2009 it is stated that replaced valve-tappets and cam-gear and checked timing found correct. On the basis of this report it is contended for the complainant that the replacement of the parts are in respect of the engine and checking was also in respect of excess noise. In our view, in the report it is shown that tappets and cam-gear replaced under good will/warranty. On the basis of that report we are unable to accept that the checking of the vehicle and replacement of the valve tappets related to excess noise emitting from the engine. Further it is contended that the report of the Engineers and Experts of OP1 for having examined the engine and found no excess noise from the engine are not produced before this Forum, hence the contention of OPs that the engine was examined by the Experts and Engineers and there was no excess noise from the engine cannot be accepted. In our view, it was for the complainant to get appointed any Automobile Engineer as an expert to examine the engine of the vehicle, to find out whether excess noise from the engine still persist. The complainant has not disclosed in the complaint about the vehicle being taken for accident repairs on 21.09.2008 after the 2^nd free service and before the vehicle was taken for 3^rd free service on 12.02.2009. Under these circumstances, we are of the view that the complainant failed to prove deficiency in service and unfair trade practice on the part of OPs. In view of the same, the complainant is not entitled for any of the relief’s claimed. Accordingly, we proceed to pass the following:               

                                O R D E R

The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 11^th day of November – 2011.)

MEMBER                         MEMBER                PRESIDENT                     

Cs.