KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.547/2012
JUDGMENT DATED 13/09/2013
(Appeal filed against the order in CC No.248/2009 on the file of CDRF, Kannur dated, 30/05/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANTS:
1. TATA Motors,
Marketing & Customer Support,
Passenger Car Business Unit,
8th Floor, Centre Cuffe Parade,
Mumbai.
2. K.V.R. Dream Vehicles Pvt. Ltd.,
P.O. Kizhunna, Thottada, Kannur-670 007.
(By Adv: Sri. V. Krishna Menon)
Vs
RESPONDENTS:
1. Beena Bessy,
Cholamattam House,
Chettiyamparamba P.O.,
Kelakam, Kannur District.
2. Koyenco Auto Private Limited,
Koyenco House, West Hill, Kozhikode-673 005.
(By Adv: Smt. Padmini.N.)
JUDGMENT
SMT. A. RADHA : MEMBER
The opposite parties are the appellants who preferred this appeal against the order in C.C.No.248/09 on the file of CDRF, Kannur. The Forum Below allowed the complaint directing the opposite parties 1 and 3 to replace the vehicle with a new one or refund the invoice value of the vehicle and pay Rs.50,000/- as compensation and Rs.2,000/- as cost of the proceedings.
2. The complainant’s case is that the complainant purchased a vehicle Tata Safari through the authorised agent, 1st opposite party. The vehicle delivered was having manufacturing defect and it is very clear from the service history of the vehicle. It was assured by the 2nd opposite party that the defects would be cleared or the vehicle would be replaced. Subsequently the 3rd opposite party was replaced as the authorised agent of the 1st opposite party and the complainant had to approach 3rd opposite party with the same complaint. It is the allegation of the complainant that promise to rectify the defects were continued but the opposite parties were unable to rectify manufacturing defect. The complainant was compelled to send a lawyer’s notice to the opposite party to cure the manufacturing defect or to deliver a new vehicle. The vehicle was purchased on 16/05/2007 for an amount of Rs.8,01,063/-. The complainant suffered mental agony and it also affected the business and complainant’s family.
3. In the version filed by the 1st opposite party it is contended that the opposite parties are renouned manufacturers of various types of vehicles. The vehicles are marketed only after getting approval by the Automotive Research Association of India. The allegation made by the complainant is baseless and there is no manufacturing defect to the vehicle. The complainant purchased the vehicle in 2007 and the complaint is filed in 2009 ie. after the expiry of 2 years from the date of purchase of the vehicle. Hence the petition is barred by limitation under section 24(A) of the Act. The other contention raised by the opposite party is that the vehicle is having a warranty of 18 months irrespective of the distance covered if used for personal purposes. The warranty for the vehicle expired on 18/11/2008 and the present complaint is filed long after the expiry of warranty period and the petition is not maintainable as per the terms and conditions and the complaint is to be dismissed on that ground itself. The defects alleged by the complainant are minor in nature and were repaired at the authorised agent of the 1st opposite party. It is also contended that the manufacturer cannot be ordered for replacement of the vehicle or refund of the price money on the ground that there exists some defects which can be rectified. The complaint is to be dismissed on the ground of mis-jointer of unnecessary party. The complainant had to prove the defect of the goods supplied or deficiency in service on the part of opposite party. The vehicle is to be attended at the authorised service centers of the opposite party at the specified intervals mentioned in the operator’s manual. The complainant willfully violated the express instructions contained in the warranty conditions. It is also stated in the version that the complainant refused to carry out the repairs on payment basis. It is particular to note that the opposite parties are not liable for replacement of any component free of cost and the complainant took away vehicle from the 3rd opposite party’s service station. The complaints alleged are only on account of lack of periodical maintenance of the vehicle. Nothing is on evidence to prove the inherent manufacturing defect in the complainant’s vehicle.
4. The contention of the 2nd opposite party is that the opposite party never assured the complainant that they will replace the vehicle with new one. No promise was made on the part of 2nd opposite party. The 2nd opposite party was replaced by the 1st opposite party with the 3rd opposite party as the authorised service centre. The 2nd opposite party is in no way connected with any of the alleged complaint of the vehicle involved.
5. It is admitted that the 3rd opposite party is the present authorised dealer for sales and service of Tata Motors, the 1st opposite party. It is also admitted that the complainant entrusted his Safari LS vehicle with the 3rd opposite party in order to carry out the repairing work free of cost. The vehicle does not have warranty while entrusting with the 3rd opposite party. Hence the 3rd opposite party was not liable to do any work free of cost. No assurance was given regarding the replacement of the vehicle to the complainant when the vehicle was entrusted with the 3rd opposite party. The complainant requested for work order. The 3rd opposite party waited till 14/05/2009 and on sending reminders, the complainant happened to issue a lawyer notice. After recording satisfaction and payment of repair charges, the complainant took delivery of the vehicle and later on filed this complaint with ulterior motive to extract huge money from the opposite parties. The vehicle was purchased in the year 2007 and vehicle was using for commercial purpose. The minor repairs and defects occurred due to improper use and unauthorised service from local workshops. There is no deficiency in service on the part of 3rd opposite party. Hence the complaint is to be dismissed with cost.
6. On the side of complainant PW1 to PW3 were examined and documents were marked as Exbt. A1 to A10 and on the part of opposite party DW1 and DW2 were examined and documents were marked as Exbt.B1 to B5. The commission report was marked as C1.
7. The Counsel for the appellant argued that the complaint is filed on 03/08/2009 where as the vehicle purchased on 16/05/2007 which shows that the complaint is barred by limitation. The allegation of manufacturing defect to the Tata Safari Car is absolutely wrong and the vehicle was having only wear and tear defects. The vehicle has been serviced by authorised workshop as and when required. It is pertinent to point out that the vehicle was having a warranty of 18 months irrespective of the distance covered, if used for personal purposes and for 18 months or 50,000 kms whichever is earlier. Assuming that the complainant used the vehicle for personal purposes, the warranty for the vehicle expired on 18/11/2008 and on that ground itself the complaint is not entertainable. The counsel also pointed out that the Commissioner appointed was a diploma holder in mechanical engineering. As per the service report the vehicle has covered 10,604 kms on 03/11/2007 and 15,333 kms on 22/01/2008. Further as per records the vehicle reported at KVR Workshop shows that the vehicle covered 36,185 kms on 30/05/2009 and at the time of inspection the Odometer shows 36,280 kms. During the visit on 12/04/2010 the 3 years have elapsed. It is reported that there is no inherent defects and the defects alleged were rectified and replaced. The Forum Below ordered replacement or refund of the value and Rs.50,000/- as compensation to the complainant is not sustainable on the ground that the Forum Below could only direct rectification of the defects alleged to be existing in the vehicle and could not direct replacement of the vehicle or refund of the price of the vehicle as laid down by the Hon’ble Supreme Court in the case of Maruthi Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr.II(2006)CPJ3(SC). He also brought our attention that the Forum erred in not considering the objection of the appellant with respect to the Commission Report. On perusal of the Commission Report it will disclose that the Commissioner has not given any cogent findings in his report. The Commissioner is bound to substantiate the cogent findings with reasons. The complainant could not be considered as a consumer as defined under the act as the vehicle was using for commercial purposes. The respondent is not entitled to claim the benefits under warranty as the vehicle had not been properly maintained with the periodical service at the authorised centres of the appellant. It is clear from evidence that the vehicle had already covered more than 30,000 kms and the warranty expired after 18 months. The opposite parties are not liable to rectify the defects on expiry of warranty period and if at all any defect is to be rectified it cannot be done free of cost. The Forum has not considered any reduction with regard to the usage of the vehicle. The counsel relied on the decision of the Hon’ble Supreme Court in Tata Engineering and Locomotive Co. Ltd. And another (AIR 1997 Supreme Court 2774) wherein it is stated that proportionate deduction for the use of vehicle has to be considered. During the period the vehicle was kept on using. He pointed out that in the above said Apex Court decision the 1/3 of the compensation awarded by the Commission was deducted towards the user of the vehicle for the period in question.
8. The respondent’s counsel vehemently opposed the arguments raised during the time of hearing. The vehicle was purchased on 18/05/2007 and from the day onwards the vehicle was having continuous repair and it was continuously in the workshop. Periodical inspections were carried out and it is pertinent to point out that though the defects were cured the defects repeated several times and had to approach the authorised agent. This process was continuing for the 2 years and when the warranty period elapsed the appellants insisted to carry out the works on payment of cost. The allegation of the respondent’s counsel is that no defects were rectified by the appellant during the warranty period properly. The commissioner who inspected the vehicle was having diploma in automobile engineering which is evident from the deposition of the commissioner. She pointed out that after 2 years the manufacturer of his vehicle stopped this type of vehicle. She relied on the Hon’ble National Commission’s decision in Jeevan Motors Pvt. Ltd. Vs. Tariq Irshad & Anr (IV(2009)CPJ150[NC]) wherein Hon’ble National Commission observed that the manufacturer and dealer are jointly held liable. The manufacturing defect in the vehicle was proved by the Commissioner and the defects were occurring intermittently. Further reliance is placed on the decision of Tata Motors Ltd. And Others Vs. Lachia Setty i(2008)CPJ151(NC). For manufacturing defects, if not rectified, it is to be replaced or refund of the cost with interest is to be allowed. The vehicle was having manufacturing defect and it was started from the very beginning itself. The defect continued for more than 2 years and somehow run for some kilometers. It is true that the vehicle was having warranty for 18 months on free of cost basis. Even during the warranty period the service engineers could not rectify the defects in the vehicle and it persisted. Now the manufacturers stopped production of this type of vehicle. The appellant is liable to replace the vehicle or refund of the amount along with compensation for the mental agony caused to the complainant. The Forum Below rightly observed and allowed the complaint.
9. We have heard both the counsels in detail. The undisputed fact is that the complainant purchased vehicle in 2007 and the warranty is for 18 months. The complaint is filed after 2 years of the purchase of the vehicle. The question of limitation pointed out by the appellant doesnot deserve consideration as the complainant’s vehicle was having defects from the very beginning itself and the vehicle was under repair several times with the 2nd opposite party and later on had to approach the 3rd opposite party. It is to be pointed out that the person who purchased a vehicle is expected to get its benefits by running the vehicle without any defect.
10. In this case, from the very beginning itself the complainant had to approach the service station for repairing the vehicle. Though defects cured the recurring defects even in warranty period caused mental agony to the complainant. We have taken into consideration that the vehicle had run 36,284 kms during 3 years. The other contention that the manufacturer stopped this series of vehicle which itself shows the vehicle does not give maximum satisfaction or quality expected by the manufacturer himself. As per the Commission Report the vehicle was having several defects could not be rectified and reported that the alleged defects of the vehicle can be occurred due to improper and unscientific usage and unauthorised service of vehicle. We are of the considered view that the vehicle in question was defective and could not repair the defects to the satisfaction of the complainant. Taking into consideration that the vehicle had covered 36,284 kms, we would like to modify the order passed by the Forum Below.
In the result, appeal is allowed in part. The appellants/opposite parties are directed to pay 1/3 of the invoice value of the vehicle and Rs.5,000/- as cost of proceedings.
The order is to comply within 30 days on receipt of the copy of the order.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.547/2012
JUDGMENT DATED 13/09/2013
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