This C.D coming on before us for final hearing, on17-12-2007 in the presence of Sri.A.Ravindra, Advocate for Complainant , and in the presence of Sri.G Sita Rama Rao,Advocate for Opposite Party No.1, and in the presence of Sri.M.Nagesh Babu,,Advocate for opposite partyNo-2, and in the presence of Sri.P.Sanjay Kumar,Advocate for opposite party No-3; upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-
ORDER
(Per Sri.K.V.Kaladhar, Member )
1. This complaint is filed under section 12(1) (a) of the Consumer Protection Act, 1986 with the following averments;
2. The brief facts of the complaint are that the complainant purchased a car for medical check up of his brother-in-law who is suffering with heart and kidney ailment and other deceases and the doctors advised to have a Medical checkup twice in a week for dialysis at Global Hospital, Hyderabad.
3. The complainant had impressed on the wide ranging advertisement of “TATA MOTORS Indigo XL Grand Dicor” by the opposite parties No.1 to 3, the complainant approached authorized agent who is opposite party No-3 and got purchased the “INDIGO XL GRAND DICOR BS III,CLASSIC IVORY colour on 6-3-2007 from authorized dealer opposite party No-2 which was manufactured by opposite party No-1, vide chassis No.609171BSZP27138, Operation type: Personal, Engine No.14DICOR05BSZP25222 by paying its valid consideration of Rs.8,24,385-00 i.e., sales invoice No.1002 dt.6-3-2007.
4. The opposite party No-2 delivered the above said Car on 12-3-07, which was got registered as AP 20 P 6162. The said car had taken for service on 4-4-07 at reading 5500, and as the car started giving trouble and problem, i.e., belt problem, informed the same and handover the said car for rectifying the trouble and problems.
5. Again, the car giving trouble with same complaint i.e., 1)starting problem, Engine sound problem and not functioning of AC. Etc. The same was informed to the opposite party No-3 and opposite party No-3 told to the complainant to take this said car to opposite party No-2. Accordingly the complainant had taken the car to opposite party No-2 on 14-4-2007, opposite party No-2 recorded the complaints as 1)Schedule service, value added services, screeching noise from Engine”. The opposite party No-2 returned the car stating that the problem was rectified and delivered the car on 15-4-07. Within the span of 15 days again the same problem was occurred to the car, i.e., “Screeching Noise from Engine” . The complainant has taken the said car to opposite party No-2 on 7-5-2007, as the problem was repeated one i.e., “screeching noise from Engine” and A/C problem, opposite party No-2 again attended service and temporarily rectified the problem and delivered the vehicle on 8-5-07.
6. Within the span of one month, again on 12-6-2007 the car gave trouble with A/c controller replay supply and the same was delivered on 19-6-07. On 25-6-07 the opposite party No-2 recorded the problem. 1)Schedule service, screeching noise from Engine, clutch Hard, value added services, vehicle pulls one side”. Even after that also the opposite party No-2 have temporarily ratified the same on 25-6-2007. Again the vehicle caused problem on 11-7-2007 with A.C. and other Engine sounds etc., and the same was temporarily ratified and delivered on 12-7-2007, again the vehicle caused problem, Engine Noice, A/c complaint, Engine Oil leakage, Remote problem, over heat, Radiator Oil boiled, Radiator fan not functioning. Total Electricity problem, phone switch not working, front Right glass not working, A/c back blower cap broken, on 2-8-2007 the complainant also found further problems such as boll joint, inner gas kit, poly belt inner gas kit fuel pipe line, Thermostat value etc., and opposite party No-2 have taken long time for attending the repair i.e., till 17-8-07.
7. It is utter surprise of complainant, from 18-8-07 and 19-8-2007 just for two days, the vehicle brought and kept in house, again the starting problem and a lot of problems as repeated earlier, immediately, as the vehicle could not start giving trouble and engine sounds occurred, it was tied to another vehicle TATA SUMO and had taken to opposite party No-2 and handed over it to opposite party No-2 on 20-8-07. The vehicle is with opposite party No-2 the complainant had vexed with number of problems arisen to the vehicle from time to time, and it had taken to opposite party No-2 and 3 for several times for rectifying the problems, but opposite parties No.2 & 3 did not show any interest to rectify the problems.
8. The complainant got purchased the said vehicle out of sheer necessity for undergoing medical checkup for his brother-in-law at Hyderabad, twice in a week, but every time the complainant faced lot of troubles and problems to the vehicle.
9. Within the warrant period and within a few months the vehicle underwent more than 10 times repairs. Hence this complaint. The complainant got issued legal notice on 22-8-07 requesting and demanding to replace vehicle.
10. Hence it is prayed that direct the opposite parties (i) to replace the vehicle AP 20 P 6162 and (ii)to award incidental charges and notice charges of Rs.46,000-00;
OR
(iii) to pay costs of the vehicle RS.8,24,385-00 along with damages of Rs.5,00,000-00 for the gross negligence, deficiency of services meted out by the opposite parties to the complainant. (iv) to award costs of the complainant.
11. The complainant filed his affidavit along with the following documents:
Ex A1: Sales invoice infavour of the complainant, dated 6-3-07 for Rs.7,32,475/-. Ex A2: Sales certificate, dated 6-3-07. Ex A3: Certificate of registration, dated 17-2-07. Ex A4: Eseva receipt, dated Nil for Rs.66,045/- towards Life tax, for the above said vehicle. Ex A5: Job card of the vehicle No.AP 20P 6162 , dated 30-5-07. Ex A6: Service particulars of the above said vehicle from 14-4-07 to 2-8-2007.Ex A7: legal notice issued by advocate for complainant to the opposite parties.Ex A8: 3 Professional courier receipt , dated 22-8-07 addressed to opposite party No-1 to 3. Ex A9: containing 3 sheets record of certificate performed by opposite parties from 4-4-07 to 26-8-07.
12. opposite party No-1 filed the following counter affidavit:
- The complainant has failed to furnish any proof that the vehicle is having a manufacturing defect. It is also settled law that an allegation of manufacture defect has to be substantiate through expert opinion only.
- It is stated that the Hon’ble National Commission in Tata Engineering and Locomotive Company Limited Vs. M.Moosa, 1994(3) CPR Page 395, held that the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or defective part can be replaced.
13. It is stated that there has been no manufacturing defect as alleged by the complainant. It is clear from the service history that the vehicle was brought for the fourth free service on 25-6-07 recording a reading of 20377 kms, if the vehicle suffers from any manufacturing defect it would be impossible to cover these kms.
14. That the vehicle is under hypothecation and the complainant is only the beneficiary and not the owner. Hence the complainant is not the consumer and has no locus standi to file the complaint. The same has been held in 2005 (2) ALT 15 (NC) (CPA).
15. As per clause-10 of terms and conditions of warranty provided in the owners manual.
Clause 10 reads”Any claim arising from this warranty shall be recognized only if it is notified in writing to us or to our authorized dealer without any delay soon after such defects as covered and ascertained under this warranty”.
16. The opposite party No-2 takes thorough checks and repairs in case of any repairs, pointed out by the complainant and delivers only after a satisfactory test drive by the service advisor/inspector. It is stated that whenever the vehicle was brought for free services, it was promptly attended and the vehicle was delivered to the complaint after full satisfaction.
17. It is stated that there is no specific allegation in the complaint against the opposite parties. Hence the complaint is not maintainable .
18. That opposite party No-2 attended to the complaints and the repairs were completed and the vehicle was made roadworthy and the complainant was informed about the same and was requested to take the delivery after acknowledging the same, but the complainant rather taking the delivery of the vehicle approach this forum to extract the monies from the opposite parties.
19. It is stated that the problems complained by the complainant was due to normal wear and tear arising out of non proper lubrication and bad driving habit. The complainant has not filed any material evidence to substantiate his case.
20. As per the Owner Manual Clause-9 reads:
“The buyer shall have no other right to repudiate the sale, or any agreement or to claim any reduction in the purchase price of the car, or to demand any damages or compensation for losses, incidental or indirect, or inconvenience or consequential damages, loss of car, or loss of time, or otherwise, incurred or accrued”. Hence the complaint is not maintainable.
21. The prayer seeking to replace the vehicle with new one along with the Rs.5,00,000/- towards damages for gross negligence, deficiency of service are untenable being incorrect and false.
22. It is stated that no case is made out by the complainant and there is no manufacturing defect proved by the complainant nor was there any deficiency of service as alleged under the said Act. The complaint may be pleased to be dismiss with exemplary costs in the interest of justice.
23. The opposite party No-1 filed the following documents which was marked as Ex B1: containing 3 sheets.
24. Opposite party No-2 filed the following counter:
This opposite party is only a dealer for the manufacturer. The opposite party No-2 is no way concern with the manufacturing of the vehicle. The duty of this opposite party is only providing service to the customers, after sale of the vehicle. Accordingly this opposite party did the required service to the complainant, whenever he approached this opposite party.
25. This opposite party had done service to the complainant whenever he brought the vehicle for servicing or with any problem. The men and technicians at the establishment of the opposite party No-2 had attended the complainant. There is no negligence on the part of this opposite party in rectifying any complaint of the complainant’s vehicle.
26. The problems mentioned in his complaint are exaggerated ones. The complainant did not follow the manual instructions properly and did not maintain the vehicle properly and he did not take the necessary precautions, envisaged in the manual. The problems cropped up not due to any manufacturing defect, but only due to improper maintenance of the vehicle by the complainant.
27. The allegation that this opposite party did not show any interest in rectifying the problem is absolutely false. Infact the very service sheet filed by the complainant shows that, this opposite party had done all the necessary and needed service to the complainant, on all visits, with full care and abundant caution.
28. The complainant did not produce any expert opinion or any expert’s record to substantiate his case that the vehicle purchased by him is with manufacturing defects.
29. The complainant has no cause of action to file this complaint in Khamma, for the simple reason that he had purchased the vehicle at Warangal, got services done at Warangal and OPPOSITE PARTY –1 being manufacturer is at Banglore, as such this Hon’ble Forum has no jurisdiction to entertain this matter.
30. Hence the complaint may be pleased to dismiss with costs.
31. Opposite party No-3 filed the following counter:
32. The averments of this opposite party No-3 is similar to that of opposite party No-2.
33. The complainant and opposite party No-1 filed written arguments:
34. The opposite party No-2 & 3 filed separate memos stating that both adopted the same written arguments of opposite party No-1. Complainant and the opposite parties advanced the oral arguments.
35. The points for consideration are: (i) Whether the vehicle purchased by the complainant is having any manufacturing defects.
- Whether the complainant is entitled as prayed for?
P O I N T(1):
It is an admitted fact that the complainant had purchased a car “INDIGO XL GRAND DICOR BS III CLASSIC IVORY colour on 6-3-2007.
It is the contention of the complainant that after purchasing the car started giving trouble since 4-4-07. The complainant faced the following problems.
(i) Starting problem(ii)Engine sound problem (iii) A/c. not functioning(iv) clutch hard (v) vehicle pulls one side (vi) Engine oil leakage(vii) Remote problem (viii) over heat (ix)Radiator oil boiled (x) Radiator fan not functioning(xi) Total electricity problem (xii) phone switch not working(xiii) Front right glass not working(xiv) A/c back blower cap broken (xv) problem in ball joint (xvi) problem in inner gas kit (xvii) problem in poly belt inner gas kit fuel pipe line (xviii) problem Thermostat value etc.,
36. For the above said problem the complainant gave his car to rectify these problem on 4-4-07, 14-4-07, 7-5-07, 12-6-07, 25-6-07, 11-7-07, 2-8-07, 17-8-07 at last on 20-8-07. It is the contention of the complainant that the vehicle underwent more than 10 times repairs within the span of warranty period. The opposite parties did not show any interest to rectify the above problems. Hence, he is entitled to replace with a new vehicle and damages of Rs.5,00,000/- for deficiency in services meted out by the opposite parties to the complainant.
37. To prove his contention the complainant filed Ex’s A1 to A9:
38. Ex A6: Contain the date of services from 14-4-07 to 2-8-07 regarding the above problems.
39. Ex A9 also shows record of services of the opposite parties regarding the above said problem from 4-4-07 to 26-8-07.
40. The complainant relied on the following decisions by (i) National Consumer Disputes Redressal Commission, Re.P.No.958/2007
Between:
Ms/s. Hundai Motors India Ltd.,.
…..Petitioner
And
1.M/s.Affiliated East West Press Pvt.Ltd.,
2. M/s.Rama Motors Pvt., Ltd., …Respondents
(ii)National Consumer Disputes Redressal Commission, New Delhi.
Original Petition No.9 of 2006
1.M/s. Controls & Switchgear Company Ltd.,
(A Company of the Daimlerchrysler Group)
Regd.Office: Sector 15-A, Chikhali,
Pimpri, Pune-411018.
2. M/s. T & T Motors Ltd.,
212, Okhla Industrial Estate,
New Delhi –110020. ..Opposite Parties
41. For this the contention of the opposite parties is that the complainant has failed to furnish any proof that vehicle is having a manufacturing defect. The opposite party No-2 takes thorough checks and repairs in case of any repairs point out by the complainant and tells only after a satisfactory test drive by the service engineer. It is also the contention of the opposite parties that if any manufacture defect is found in the vehicle the complainant has to file expert opinion regarding the manufacturing defect in the vehicle.
For this the opposite parties have relied on the following citations:
(i)IV (2006) CPJ 1 (SC)
SUPREME COURT OF INDIA
Arijit Pasayat &Lokeshwar Singh Panta, II.
ORIENTAL INSURANCE COMPANY LTD.
-Appellant
Versus
MUNIMAHESH PATEL -Respondent
Civil Appeal No.4091 of 2006 from Judgment and Order dated 19-5-2004 of National Consumer Disputes Redressal Commission, New Delhi in F.A.No.82 of 2002 – Decided on 12-9-2002.
(ii)Matter involved abjudication of issues involving disputed factual questions – Compel factual position requires matter to be examined by appropriate Court of Law and not by Commission – This was upheld by Hon’ble Supreme Court of India.
(iii) (2006) 4 Supreme Court Cases 644
(BEFORE ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ).
MARUTI UDYOG LTD. …Appellant;
SUSHEEL KUMAR GABGOTRA AND ANOTHER ..Respondents;
Civil Appeal No.3734 of 2000, decided on March 29,2006.
Replacement of the entire item or replacement of defective parts only called for.
(IV)1994(3) page No.395 C.P.R.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI.
V.Blaakrishna Eradi,President ; Y.Krishan
And B.S.Yadav,Members
M/s.Tata Engineering & Locomotive Co. Ltd.& Anr.
…Appelants
Versus
M.Moosa -Respondent
First Appeal No.75 of 1994
Decided on 27-9-1994.
Defective goods -purchase of Tata Estate Car- defects in car- No manufacturing defect- Defects were rectified as and when vehicle was brought for servicing- Complainant did not take car to Dealer for first and third free service- Claim for refund of price of car- Not to be allowed – Opposite parties shall take car from complainant and rectify all defects, if any, found in vehicle.
(V)Part I 2004 CPJ Page No.538
DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr.Justice Lokeshwar Prasad President & Rumnita Mittal, Member
NARENDER -Appellant
Versus
INTERNATIONAL TRACTORS LTD.& ANR.
-Respondents
Appeal No.524 of 2003 – Decided on 15-7-2003.
Consumer Protection Act, 1986 – Section – Motor Vehicles – Technical/manufacturing defects – Absence of expert opinion – Onus to prove case not discharged – Complainant rightly dismissed by Forum.
VI. 2005 (2) ALT 15 (NC) (CPA)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
K.S.GUPTA, J.,PRESIDING MEMBER and Mr.B.K.TAIMNI, MEMBER
Revision Petiton No.2147 of 2001.
Decided on 30-8-2004.
Anil U.Pandey
V.
National Insurance Co.Ltd.
VOL.II.
II(1994) CPJ 7(SC)
SUPREME COURT OF INDIA
Present: Chief Justice of India, Mr. S.Mohan, and Dr.A.S.Anand,JJ.
MORGAN STANELY MUTUAL FUND
-Appellant
Versus
KATRICK DAS -Respondent
And
Dr.ARVIND GUPTA - Appellant
Versus
SECURITIES & EXCHANGE BOARDOF INDIA & ORS. -Respondents
Civil Appeal Nos.4584 & 4587 of 1994-Decided on 20-5-1994.
42. The contention of the complainant is that the above said Car is giving so many troubles and those troubles were not rectified by the opposite parties and the car is not road worthy. We have perused the documents such as job card and service record of the above said vehicle.
43. The main problems of the car has contending by the complainant engine Noice, A/c complaint, Engine Oil Leakage, Remote problem, over heat, Radiator Oil boiled, Radiator fan not functioning , total Electiricty problem, phone switch not working, front right glass not working, A/c back blower cap broken, problem in boll joint, poly belt inner gas kit fuel pipe line, Thermostat value. Whether these are manufacturing defects in engine are not. It appears that all these defects are minor defects, these can be rectified by the technicians of opposite parties. To prove his contention he filed two citations of National Consumer Redressal Commission ,vide original Petition No.958/2007. In this case, the opposite parties are not in a position finding solution to control attention of white/block smoke. It is also admitted that valve Assemble EGR system were replaced under warranty. In this case Hon’ble National Commission opined that normal by fuel injectors and head are not dismantling cleaned for at least a running distance of 50,000K.M. Hence the Hon’ble National Commission awarded damages to the complainant.
44. In another case vide o.p.No. 9/06 National Consumer Redressal Commission of New Delhi. The complainant had purchased Mercedez-BENZ cars and that car is overheating due to problem in the hump. Due to problem of overheating the complainant was not able to sit in the car. To prove this fact a commissioner was appointed and test drive was done up to a distance of 200 km and the commissioner record the temperatures at various kilometers. In this case technical report was also filed by former director of ARAI. Basing on the report of commissioner in that report stated that the central hump was being getting hugged on long journey.
45. It is pertinent to mention that Mercedes Benz cars the company recalled 3 million cars. In these circumstances the Hon’ble National Commission ordered the opposite parties to refund the purchase price of that car.
46. The opposite parties main contention is that any manufacturing defect was found in the car. The complainant did not examine any expert opinion regarding the manufacturing defect in the car. And the car is road worthy now and defect free.
47. Hence the above citations presented by complaint are not applicable to this case.
48. We have perused all the citations filed by the opposite parties. The sum and substance of that citations are the manufacturer cannot be ordered to replace the vehicle or refund price merely because defect (not manufacturing defect) appears which can be rectified or defect part can be replaced.
49. Hence we are of the opinion that the above car is being minor defects and the opposite party had already rectified those defects. And the defects as treated by the complainant are not due to manufacturing defects. The complainant did not file any affidavit of expert service engineer to state that all these defects are manufacturing defects. The complainant fails to prove his case. The point is answered against the complaint and in favour of the opposite parties.
P O I N T(II): The complainant is not entitled as prayed for?
Hence, the point is answered against the complaint and infavour of the opposite parties.
50. In the result the complaint is dismissed. No costs.
Dictated to Stenographer transcribed by her, Corrected and pronounced by us, in this Forum on this 2nd day of January, 2008.
President Member Member
District Consumers Forum, Khammam
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR
Complainant Opposite parties
Nil Nil
DOCUMENTS MARKED FOR
Complainant
Ex A1: Sales invoice infavour of the complainant, dated 6-3-07 for Rs.7,32,475/-. Ex A2: Sales certificate, dated 6-3-07.
Ex A3: Certificate of registration, dated 17-2-07.
Ex A4: Eseva receipt, dated Nil for Rs.66,045/- towards Life tax, for the above said vehicle.
Ex A5: Job card of the vehicle No.AP 20P 6162 , dated 30-5-07.
Ex A6: Service particulars of the above said vehicle from 14-4-07 to 2-8-2007.
Ex A7: legal notice issued by advocate for complainant to the opposite parties.
Ex A8: 3 Professional courier receipt , dated 22-8-07 addressed to opposite party No-1 to 3.
Ex A9: containing 3 sheets record of certificate performed by opposite parties from 4-4-07 to 26-8-07.
Opposite parties
Ex B1: containing 3 sheets
President Member Member District Consumers Forum, Khammam
