Orissa

Cuttak

CC/283/2013

S K Tafique - Complainant(s)

Versus

Proprietor,Trupti Automatives - Opp.Party(s)

A K Samal

22 Feb 2021

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.283/2013

  Sk. Tafique,

   At:Jholasahi,PO:Telengabazar,

                Town/Dist:Cuttack, Pin-753009.                                         … Complainant.

 

Vrs.

1.      Proprietor,M/s. Trupti Automotives,

At:N.H-5,Manguli Chowk,

Dist:Cuttack,Pin-754025.

 

2.     Managing Director,Tata Motors Limited,

Regd. Office:24,Homi Modi Street,Fort,Mumbai-400001.

 

3.    Tata Motors Fionance Limited(TMFL),

Gurudwar Singh Sabha,Ground Floor,Kharvel Nagar,

Janpath,Unit-3,Bhubaneswsar.... Opp. Parties

 

Present:               Smt. Sarmistha Nath, President(I/C)

                                Sri  L.N.Das Choudhury,Member

                               

 

Date of filing:    27.11.2013

Date of Order:  22.02.2021

 

For the complainant          :    Sri A.K.Samal,Adv. & Associates.

For the O.P No.1.                :    Sri S.Das,Adv. & Associates.

For O.P No.2                        :    None.

For O.P No.3                        :    Sri R.K.Pattnaik,Adv. & Associates.

                                                                               

Smt. Sarmistha Nath,President(I/C)

 

            The complainant has filed this complaint against the O.Ps for redressal of his grievances U/S-12 of the Consumer Protection,2019 in terms of the prayer made in the complaint petition alleging deficiency of service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in short is that the complainant for livelihood purchased one TATA ACE vehicle from the showroom of the O.P No.1 on 28.11.2012 at the cost of Rs.3,44,560/- by availing finance from Tata Motors Finance Ltd.  The complainant is the holder of a Driving License and he himself drives his vehicle.  After purchase of the vehicle, the Dalla works of the vehicle was done which took nearly one month.  After completion of the said work, when the vehicle started plying on the road, within one month, it suffered various defects. The complainant felt difficulty in driving the vehicle.  The technician of the O.P.1 told that the mobil works shall be done in the vehicle.  Though the technician of the O.P No.1 repaired the vehicle, the defects could not be removed.  The vehicle of the complainant was also got repaired on 27.2.2013,28.5.2013 and 12.9.2013 in the workshop of the O.P No.1.   During the said period several defects such as Assay oil filter, fuel filter element, cotton cloth, fuel filter, oil seal, gasket, split pin, F/C wheel hum, injection pump, injection nozzles besides other parts were also replaced but the defects in the vehicle persisted.  The copy of the retail invoice is marked as Annexure-1.  The registration certificate (R.C) book is annexed as Annexure-2.    Annexure-3 is the driving license of the complainant.

During the intervention period the complainant also found that the tyres fitted in his vehicle got damaged which occurred due to defects in the alignment system in the wheels of the vehicle.The complainant lodged claim for replacement of damaged tyre by supplying a new one.The O.Pspaid Rs.900/- and Rs.1600/- to the complainant for replacement of tyres thereby partly allowing his claim which is also proves that there is defects in the alignment system in the wheels of the vehicle.The O.P No.1 delivered the vehicle to the complainant after repairing and assured him that the defects in the vehicle have been removed.After getting such assurances from the O.P No.1 the complainant received the vehicle.Thereafter the vehicle suffered from another defect i.e low pick up and it could not be driven at minimum speed.When the complainant reported about the said defect in the workshop of O.P No.1, they opined that the pump of the vehicle shall be opened and it will be repaired.When in spite of their efforts, the O.P No.1 could not remove defects by their technician; it was repaired in an outside workshop at Buxibazar by O.P No.1.After the said pump works, the defects in the vehicle could not be removed rather it gives low mileage and black fuel comes out of the engine.The complainant intimated the said facts to the O.P.1 after which they told the complainant that the pump work shall be done again to remove the defects.After examination of the vehicle, the mechanics of the O.P No.1 reported that the vehicle will be sent for repairing to Tata Motors,Bhubaneswar.For examining the pump, the vehicle of the complainant was detained for 13 days in the workshop of O.P.1 as well as workshop of Tata Motors Ltd.After repairing of the vehicle it was handed over to the complainant and the O.P No.1 assured the complainant that the vehicle has become defect free. After driving the vehicle, the complainant found that both the tyres of the vehicle has got damaged once again and second claim was also lodged by the complainant but neither the claim was settled nor the defects in the vehicle removed.Rather all the defects were again surfaced in the vehicle and very black smoke came out of silencer while driving and it gave low pick up and low mileage.When the complainant intimated the same to O.P No.1 he told the complainant that the engine needs to be opened and repaired along with other related works in front Axil shall be done.The complainant declined as it was unusual in case of a new vehicle.The complainant claimed for replacement of defective vehicle by a new one but the O.P.1 declined. Copies of the various job cards issued by the O.P.1 are Annexure-4 series.

The complainant approached the Consumer Counselling & Information Centre,Cuttack for redressal of his grievances.The counselling centre sent a notice to the O.Ps 1 & 2 .On receipt of the said notice, the O.Ps remained silent.The copies of the notice is Annexure-5 series.

The complainant has prayed before this Forum to direct the O.P No.1& 2 to replace the defective vehicle with a new one and O.P No.3 be directed not to demand the E.M.I dues till replacement of the defective vehicle by a new one.The O.Ps be directed to pay compensation of Rs.50,000/- for mental agony, harassmentand financial loss.

2. The O.P No.1 appeared and filed its written version stating that the case is not maintainable before this Forum.  The complainant is not a consumer under the O.P and no cause of action arises against it.  The purchase of the TATA ACE vehicle on 28.11.2012 for a consideration of Rs.3,44,560/- is admitted by the O.P.  O.P No.1 submitted that the said vehicle is manufactured by the O.P No.2 and the present O.P being the authorized dealer of TATA Motors Ltd. had sold the said vehicle the complainant which carries the manufacturer’s warranty of 1 year from the date of purchase subject to term and conditions set out in the said warranty.  The copy of terms and conditions of the warranty is Annexure-A.

The complainant brought the vehicle for the first time to the workshop of O.P.1 with alleged problems of engine vibration on 12.12.2012 which was immediately attended to by this O.P.1 by renewing the nozzles in the FIP free of costs under warranty and the complainant took delivery of the vehicle on the next day after being satisfied.Copies of job card dt.12.12.2012 and retail invoice dt.13.12.2012 are Annexure-B & C respectively.After 2 ½ months, on 27.2.2013 the complainant reported his vehicle for the scheduled first free service when the vehicle had run for almost 10,069 Kms wherein the complainant reported no specific problems but as per the requirements of the scheduled first free serviced, the engine oil was changed, the oil filter was changed and the general over all check up was carried out free of costs and the complainant took delivery of his vehicle on the same day after being satisfied.Copies of job card dt.27.2.2013 and retail invoice dt.27.2.13 are Annexure-D & E respectively.Similarly on 18.3.2013, the complainant reported his vehicle to the workshop of the O.P.1 with the alleged problems of noise in wheels, engine oil consumption high, tyre wear high and poor pick-up which were attended to immediately by making the necessary thorough general check up and wheel alignment free of costs under warranty and the complainant took delivery of his vehicle on the same being satisfied as to the works done in the vehicle.Thereafter on 22.5.2013 the complainant reported his vehicle for the scheduled 2^nd free service when vehicle had almost run 20110 Kms and the complainant reported problems of high engine oil consumption, fuel average low, hub greasing etc for which besides the mandatory engine oil, fuel filter change and hub greasing was done, injection nozzle was renewed and FIP was removed, adjusted and refitted free of costs under warranty and the complainant took delivery of his vehicle on 28.5.13 by giving a satisfactory note.Again on 7.6.13 the complainant reported the complaint of tyre bubble in tyre casing which was addressed immediately by renewing one tyre for which the extra charge of aRs.1850/- in respect of one tyre was given to the complainant within the warranty.On 16.7.13 the complainant reported with different problems of fuel average low. excessive smoke, malfunctioning of electrical cabin which was addressed to by the O.P.1 by replacing the Assay Combi switch with wash function and by checking the FIP timing under warranty on the same day and the complainant took delivery on same day and gave a written satisfactory note/feed back.Thereafter on 12.9.2013, the complainant reported the problem of engine oil consumption high, tyre wear high, excessive smoke, fuel average low and vehicle noise when vehicle had run for 31,996 Kms. which have duly been addressed by the O.P No.1.The complainant’s complaint on one of the tyres have also been duly addressed by the present O.P.1 on 26.9.13 by paying the complainant extra charge of Rs.930/- in respect of one tyre within the warranty.Copy of job card dt.18.3.13 is Annexure-F.Copy of retail invoice dt.18.3.13 is annexure-G.Copy of job card dt.22.5.13 is Annexure-H.Copy of retail invoice dt.28.5.13 is Annexure-I.Copy of feedback/satisfactory note dt.28.5.13 is annexure-J.Copy of job card dt.7.6.13 is annexure-K.Copy of retail invoice dt.7.6.13 is Annexure-L.Copy of job card dt.16.7.13 is Annexure-M.Copy of retail invoice dt.16.7.13 is Annexure-N.Copy of feedback/satisfactory note dt.16.7.13 is Annexure-O.Copy of job card dt.12.9.13 is Annexure-P.Copy of retail invoice dt.12.9.13 is Annexure-Q.Copy of job card dt.26.9.13 is annexure-R and copy of retail invoice dt.26.9.13 is Annexure-S.

The further averments of the O.P.1 is that the claim in respect of both the tyres have been duly settled with the complainant being paid Rs.2,700/- in respect of the said two tyres on 4.11.2013.Copy of the payment receipt voucher dt.4.11.13 is Annexure-T.The complainant could have reported the alleged problems on 15.1.14 when a campaign service conducted by the O.P.The service history of the vehicle conducted by the O.P.1 is Annexure-U.It is denied by the O.P.1 that engine of the vehicle or the vehicle is defective and suffers from manufacturing defects and it is also denied that the engine works have been done on the vehicle rather the vehicle has been reported number of times for some minor, routine running problems/complaints attributable to poor maintenance, improper use and mis-handling of the vehicle and the complaints have been duly addressed each time, thus the complainant is not entitled to the replacement of the vehicle.

On receipt of the notice from the Consumer Counselling Centre,Cuttack the O.P has given a due reply to the said notice vide itsletter dt.10.12.13 sent through registered postwith A/D on 12.12.2013.Though the complainant was requested to bring his vehicle to the workshop of the O.P for sorting out the problems, if any persisting in the vehicle but the complainant without bring his vehicle to the workshop of the O.P has brought this dispute suppressing the reply dt.12.12.13 sent by the O.P.Copies of reply dt.10.12.13 and the postal receipts thereof dt.12.12.13 are Annexure-V & W.The warranty does not provide for the replacement of the vehicle.

3. The O.P No.2 appeared and filed its written version and has submitted that the vehicles manufactured by them pass through stringent quality checks and road trials before the actual commercial production starts and the vehicles are marketed only after being approved by the Automotive Research Association of India(ARAI).  All the vehicles manufactured in the plant of O.P are put through stringent control system, quality checks and test drives by Quality assurance Department before being cleared for dispatch to the market.  The allegation made by the complainant regarding the manufacturing defect in the vehicle is baseless as it does not rely on any expert report from any recognized and notified laboratory under section-13(1) of the Consumer Protection Act.  The complainant is not a consumer within the meaning of the term ‘consumer’ as the vehicle in question has been used for commercial activities in order to generate profit and has covered more than 32215 kms within a mere span of approximate 14 months and the extensive usage of the vehicle in question establishes that this is not normal personal usage but rather for commercial activities and is not entitled for any relief.  The O.P.2 has further submitted that the vehicle requires mandatory servicing and replacement of specified components viz air filter, fuel filter etc at recommended intervals as mentioned in the operator’s service book given at the time of sale, for smooth running.  But the complainant failed to follow the guidelines as recommended for the better performance of the vehicle.  The O.P.2 has further produced a list of dates on which the complainant had availed services from the O.Ps which shows that the complainant failed to maintain the vehicle as per the recommended schedule.  The O.P.2 has also submitted that as per clause-1 of the warranty applicable for the subject vehicle, the warranty shall be limited to 36 months from the date of sale of the vehicles by their works or Regional Sales offices or sales establishments or authorized dealers or 36000 kms whichever is earlier subject to fulfilment of other terms and conditions of the warranty.  The complainant is supposed to provide an expert’s report in support of his allegations as provided in Sec-13(1)(c) of the Act and in absence of the same, the allegations of the complaint cannot be established and ought to be dismissed.

The O.P.2 further averred that vehicle has covered around 32215 Kms within a period of 14 months which proves that the vehicle is in absolute roadworthy condition and that the jobs carried out on the vehicle in question are minor and running repairs and the O.P.2 has been prompt to attend to the alleged grievances reported by the complainant under the warranty as and when reported.  Therefore, the prayer as made by the complainant for replacement of the vehicle is unsustainable.  The answering O.P cannot be held liable for any independent act and/or omission, committed by the other O.P.  The complainant in para-2 has admitted that the vehicle has been purchased by way of financial assistance/hire purchase from Tata Motors Finance Ltd. so the vehicle is under hypothecation and the complainant is only a beneficiary and not the owner till filing of the complaint and till date the complainant is not the consumer and has no locus-standi to file the complaint. The complainant himself admitted that during the servicing several parts were replaced and as per the service history those parts were replaced under warranty and the complainant took delivery of the vehicle after being satisfied with the service of the service centre.  The copy of the service history is attached as Annexure-A.  With reference to para-3 of the complaint petition, the O.P.2 states that no warranty was given in respect of the tyre of the vehicle and also the damage caused to the tyre because of improper use and negligent driving of the vehicle and not for any manufacturing defect.  So the complainant was not entitled to any sort of replacement of tyre.  On 7^th June,2013 when the vehicle reported to the service centre the tyre wheel was renewed under warranty and no alignment issue are made in respect of the tyre.  Copy of the warranty policy of the vehicle is attached as Annexure-B.  The O.P.2 has further denied the averments made in para-4 that the vehicle was in the workshop of Tata Motors for 13 days.  O.P.2 has replied to the averments made in para-5 that the complainant has not specified any d ate of occurrence of the alleged grievance and no valid claim for replacement of tyre was made and no replacement was given in respect of the tyre of the vehicle.  Complainant has not specified any date of surface of the defects in the vehicle.  The vehicle is checked at the workshop by the Quality Inspector (QI) and by Diagnostic Expert cum Trainer (DET) during pre and post repairs to ensure quality workmanship.  The service advisor of the workshop who interfaces with the customer is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the vehicle after every service/repairs to the entire satisfaction of the customer.  The vehicle as attended by the O.P’s dealers/service points fully comply with the warranties, assurances and specifications provided for it by manufacturer regarding quality and performance of the vehicle, hence there cannot be any complaint of deficiency of service against the O.P. by the complainant.  The O.P.2 further averred that the Annexure-4 series has not been served with the complaint application as such the same is denied.

The O.P.2 denied the allegation of black smoke and mileage problem of the vehicle and stated that after being dispatched to the authorised dealers, the respective dealers are required to carry out Pre-Delivery Inspection (PDI) of all new vehicles before selling it to customers as per the standard check-list.  The O.P.2 averred that without having any expert opinion from any notified laboratory, the complaint is not maintainable, hence liable to be dismissed.

4. The O.P No.3 appeared and filed its written version and raised the question of maintainability of the complaint case.  The O.P.3 stated that the complainant is a chronic defaulter of the instalments and has defaulted in repayments of several instalments within the prescribed time and also defaulted in making full payment of the amount as agreed under the contract.  Defaulted, late and part payment by complainant has resulted in addition of delayed payment charges.  The complainant deposited post dated cheques with O.P No.3 towards the repayment of loan instalments but the cheques have been regularly dishonoured due to insufficient funds.  The O.P.3 further averred that the complaint is not maintainable as the loan agreement contains arbitration clause.  The complainant in the entire complaint has nowhere contended or averred that the O.Ps have in any manner breached or violated any condition of the agreement.
5. The O.P No.2 filed a petition praying for a direction to complainant to submit a report of appropriate laboratory after a thorough inspection of the vehicle.  This Forum directed the M.V.I,Cuttack to examine the vehicle and submit the report.  Accordingly the learned M.V.I after examining the vehicle in presence of the parties submitted the report as follows:

The complains and my views are:

Vibration in the engine of the vehicle for which vehicle could not be controlled and complainant felt difficulty in driving.	I drove the vehicle on road but couldn’t find such problem.
Tyres fitted in the vehicle got damaged due to defects in alignment system	At the time of inspection the vehicle is fitted with tyre size 155/82R12 instead of 1435/80R12.  Also one extra left spring has been added which violates company’s specifications.

 

Low pickup and low mileage	Although the vehicle has run 76263 yet the clutch plate and pressure plate has not been replaced.  But the clutch plate and pressure plate has to be replaced in 40,000 Kms.  Also the representatives were asked to test the mileage after doing all necessary repairing.
Pump work.	After driving it is felt that there is problem in fuel line system which has to be checked in the workshop with all genuine spares fitted.  During verification it is found that company recommended fuel filters not used.
Black smoke coming out of silencer.	Driving examination no black smoke is coming out.  However I asked the complainant to produce the pollution under control (puc) certificate which he could not produce.

 

6. Complainant filed an objection to the report submitted by the M.V.I.  The complainant in his objection has stated that the report submitted by the M.V.I is biased as he has not addressed all the complains and also the views are not specific and also stated that the vehicle is fitted with an oversize tyre but the said tyre has been fitted by the manufacturer and that apart the report discloses that there is problem in fuel line system which has to be checked up in workshop and apart from that the M.V.I has not answered whether there is manufacturing defects in the vehicle or not.
7. We have heard from learned counsels of the parties at length, gone through the pleadings, papers and documents filed by respective parties.  Admittedly the complainant purchased one TATA ACE vehicle from show room of O.P No.1 on hypothecation having finance obtained from O.P No.3 and defaulted in paying some E.M.Is.  The complainant alleged inherent manufacturing defects in the vehicle and the O.Ps denied the allegation.  The M.V.I submitted report that the vehicle has no manufacturing defect.  During course of argument, the counsel for complainant submitted that after one month of plying of the vehicle, it developed various defects and the vehicle was required to be brought into the service station many times but the defects persisted in spite of servicing by the service station.  So the vehicle has inherent manufacturing defects.

Per contra the counsel for the O.P NO.1 submitted that the onus to prove the manufacturing defect lies on him, who complains of the same and he further urged that simply because the vehicle was required to be brought before the service station number of times for curing some defects, it cannot be held positively that it was having some manufacturing defects which are not curable and for proving the fact of manufacturing defect an expert opinion is necessary and in the present case, the M.V.I who is an expert in that field has submitted the report which does not disclose any manufacturing defect in terms of Section-13(1)(c) of the Consumer Protection Act,1986.

After hearing rival submissions, we are of the considered view that the complainant has failed to prove the manufacturing defects in the vehicle.  So the contentions of the complainant is not sustainable.

                                          ORDER

Basing upon the facts and circumstances as stated above, the complainant failed to prove manufacturing defects in the vehicle, hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 22^nd day of February,2021 under the seal and signature of this Commission.

                                                                                                                                                                                        

Smt. Sarmistha Nath

President(I/C)

                                                                                                           

 

Sri L.N.Das Choudhury

Member.