Date: 20.11.2014
J.Bag. Member.
The present appeal is directed against the Order dated 11.05.2012 of the Ld. District Consumer Disputes Redressal Forum, Cooch Behar, in Case No. DF/54/201, whereby the complaint was allowed on contest with costs against OP Nos. 1-3 .
The complaint case, in brief, was as follows:
The Complainant purchased a TATA SUMO VICTA D1 LX , OP No. 3 being its manufacturer , from OP No.2 at a price of Rs. 5,65,004/- on 28.06.2010. The vehicle was registered under No. WB 64 D-6494 and was duly insured. After the purchase of the vehicle the Complainant experienced the problem of ‘wheel Rim bend’ . He also noticed some other problems said to be in the nature of manufacturing defects . The problems were reported to OP Nos. 1 , 2 and 3, but the said OPs did not pay any heed to the allegations of the Complainant. Free servicing of the vehicle was availed from the authorized service centre , namely Utsav Motor Private Ltd. on 07.07.2010 after run of 1,038 KM , on 31.07.2010 after run of 4650 KM , on 07.12.2010 after run of 15499 KM and on 11.05.2011 after run of 30499 KM. Then the problem of rusting of the vehicle was reported to OP Nos. 1,2 and3 in April 2011. The Complainant was asked to pay proper charges for rectifying the rusting problem . The Complainant could not ply the vehicle normally for manufacturing defects and as such the payment of monthly EMI to OP No.4 was hampered . The entire matter was reported to OP No.3 repeatedly on 03.05.11, 04.05.11, 06.06.11 and 13.06.11 . CRO of OP No.3 requested the Complainant to approach OP No.1 as well as OP No.2 with photographs of damaged portions of the vehicle . There was no fruitful result . Inspite of writing a letter on 17.06.2011 to the OP No.1 and 3 , no action was taken . The OPs did not rectify the defects which were reported during the warranty period. The Complainant suffered financial loss as well mental agony and pain on the ground of deficiency in service . Hence a petition of complaint was filed before the Ld. Forum below with prayer for direction upon OP Nos. 1 ,2 and 3 to replace the defective vehicle by a new one of Tata Sumo Victa DI LX or to refund the entire price of the vehicle of Rs. 5,65,004/- among other reliefs including payment of compensation of Rs.1,00,000/- and litigation cost of Rs. 20,000/- .
The complaint was contested by filing of W.V.s by OP No.3 and also by OP Nos. 1 and 2 separately. OP No. 1 and 2 denied all material allegations and contended that the complaint was filed on a flimsy ground with a malafide intention to lower down the reputation of the OP No.1 and 2 in the market. There was mishandling of the vehicle and the vehicle was not maintained as per instructions contained in the driving manual . The Complainant neglected to avail scheduled free servicing. No expert opinion was adduced in the complaint about the manufacturing defects as alleged . There being no provision for replacement of the vehicle , the complaint was liable for dismissal. OP No. 3 in their W.V submitted that there was no manufacturing defect in the vehicle and there was no evidence to show that the Complainant produced any material support about manufacturing defects . The complaint was fit for dismissal .
Ld. Forum below having gone through the pleadings of the parties , including the documents and evidence, observed that OP Nos. 1 - 3 did not actually take any action in regard to the complaints reported to them from time to time. Ld. Forum below by their order dated 13.03.2012 asked the Assistant Customer Support Manager of Tata Motors Ltd. (OP No.3) for inspection of the vehicle . Accordingly , a report was submitted by such Assistant Customer Support Manager on 29.03.2012. Relying upon the report and going by the materials on record , Ld. Forum below allowed the complaint with cost of Rs.10,000/- against the OP Nos. 1 ,2 and 3 along with directions upon the said OPs to take delivery of the vehicle from the house of the Complainant at their costs within 15 days from the date of the order and to remove all defects. Apart from payment of Rs. 25,000/- as compensation to the Complainant for harassment , pain and mental agony , OP Nos. 1 - 3 were also directed to pay another sum of Rs.10,000/- to the State Consumer Welfare Fund within 45 days from the date of order, failing which penalty of Rs.100/- for each day’s delay would have to be paid to the State Consumer Welfare Fund. Further, it was ordered that if OP Nos. 1-3 failed to give showroom look to the vehicle and make the same roadable and free from all defects, they shall have to refund the entire purchase amount of Rs.5,65,004/- along with interest @ 9% p.a. over the same since 28.06.2010 till its final payment but such part of the order must be complied by the OP No.1-3 jointly and severally within one month from the date of failure to comply the first part of the order. OP Nos. 4 & 5 were found to be not liable to pay any amount in form of relief to the Complainant.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Appellant, namely, M/s Tata Motors ,being OP No. 3 in the complaint case have come up before this Commission with a prayer for direction , inter alia to set aside the impugned order with costs.
Ld. Advocate appearing for the Appellant reiterated the grounds taken in the memorandum of appeal and emphasized that the Complainant / Respondent filed the complaint with an ulterior motive and the impugned order is totally arbitrary and beyond the purview of the provisions of the warranty of the vehicle. He cited the decisions of the Hon’ble National Consumer Disputes Redressal Commission as reported in 2011 CTJ 365 (CP) (NCDRC) emphasizing that any of the condition or words thereof as noted in the warranty can not be construed in a different manner or meaning and in 1 (2010) CPJ 19 ( NC ) emphasizing that the vehicle after its purchase was put on road for quite a considerable cover of 30499 KM . It was pointed out that the engine bracket of the vehicle was welded from some unauthorized repairer which is a violation of Clause No. 5 of the warranty Had there been any manufacturing defect , the vehicle could not run covering that length. Further , the Complainant did not produce his vehicle for servicing as per terms of warranty. Though as per terms of warranty the vehicle was to be taken for servicing just after 1000-1500 KM run , the vehicle was first taken after 4650 KM run and thereafter, though the recommended third service was scheduled after 15000-15500 KM run , the vehicle was taken after 30499 KM run . On 11.05.2011, when free servicing was availed , no problem was raised by the Complainant .The Complainant neglected to produce the vehicle for the mandatory third free service and the subject act / omission invalidated the warranty . Again, when on 23.05.2011 after a recoded run of 31,120 KM, the vehicle was brought for servicing, several items of work were performed including front wheel alignment without any charge. The Complainant acknowledged the same by signing his satisfaction note . Accordingly, the question of manufacturing defect or deficiency in service does not arise. The order of the Ld. Forum below is biased and without application of judicious mind. The impugned order should be rejected.
Ld. Advocate appearing for the Complainant / Respondent submitted that immediately after purchase of the vehicle , the Complainant owner experienced several problems which were informed to the OP Nos. 1 , 2 and 3. Though servicing of the vehicle were done for 4 times , the manufacturing defects as pointed out were not rectified inspite of currency of warranty . Even after the expert of the Tata Motors inspected the vehicle under the order of the Ld. Forum below, the OPs failed to rectify the defects . As a result , the vehicle is lying idle at garage for which the Complainant is suffering huge loss in his business and the vehicle needs to be replaced as ordered by the Ld. Forum below, failing which the entire price should be refunded with interest as ordered by the Ld. Forum below.
Ld. Advocate appearing for Respondent No. 2, being OP No. 4 in the complaint case , submitted that nothing was alleged against them in the complaint petition and as such their name should have been expunged from the appeal.
Ld. Advocate appearing Respondent No.3, being OP No. 4 that the Complainant Respondent has not been paying EMIs and necessary orders may be passed by the Hon’ble Commission to clear the unpaid EMI’s.
Decision with Reasons
We have gone through the memorandum of appeal together with the impugned order , the petition of complaint , W.Vs. submitted by the OP Nos. 1 to 5 separately and other documents including the servicing reports in respect of the vehicle. Ld. Advocates appearing for the Appellant and the Respondents have been heard. BNAs filed by the Appellant and Respondent No. 1 have been gone through. The case laws submitted by the Appellant are :
- 2011 CTJ 365 (CP) (NCDRC) in the matter of Sahara India , Commercial Corporation Ltd. and Anr. –vs- C. Madhu Babu.
- 1 (2010) CPJ 19 (NC) Dr. K. Kumar Advisor (Engineering) Maruti Udyog Ltd. –vs- Dr. A.S. Narayana Rao and Anr.
- Decision of the State Consumer Disputes Redressal Commission , W.B. in SC Case No. FA/65/2012 in the matter of Tata Motors Ltd. –vs- Sri Goutam Ghosh and Anr.
The Complainant after purchase of the vehicle from the OP No.2 experienced some problems in respect of his vehicle and in his petition of complaint it has been stated that he reported about the defects of the vehicle to the OPs. However, there appears to have been no written communication to the OPs about the exact defects of the vehicle. There is no mention in the impugned order about any paper through which the complaint reported about any defect , not to speak of manufacturing defect alone.. How the Ld. Forum below viewed that there were manufacturing defects remains unclear. The vehicle was , as per warranty, due to be produced for servicing after coverage of particular lengths of run i.e., after 1000 to 1500 KM, 5000 to 5500 KM, 15000 to 15500 KM and 30000 to 30500 KM. Of such scheduled servicing , the Complainant availed the second service and the fourth service , while he neglected to avail the first service and the third free service. Any kind of manufacturing defect would not have rendered the vehicle to run such a huge cover of 30000 KM and above. It is indeed difficult to believe that with so many defects as alleged by the Complainant , the vehicle was put on road with the risk of accident. Even when the vehicle was inspected by the Assistant Customer Support Manager, Tata Motors, on 27.03.2012 under instruction of the Ld. Forum below, the total run of the vehicle as recorded was 49,466 KM and the vehicle was last reported to have run 33120 KM as per service history as recorded in the report of the Assistant Customer Support Manager, Tata Motors. The defects pointed out during the inspection including rusting on front windshield frame and doors were of such nature as could not be justified as manufacturing defects, though Ld. Forum below held the defects to be of such manufacturing defects. Ld. Forum’s observation that the report of the Assistant Customer Support Manager confirmed the manufacturing defects as pointed out by the Complainant / Respondent is not exactly what the said technical expert observed in his report.
It is seen that the vehicle has covered a considerable length of run of about 50,000/- KM within a period of about 2 years which itself is indicative of the fact that the vehicle has performed heavy duty and it would have not been possible, had there been any manufacturing defect.
Going by the above discussion we are of the considered view that there was no clear evidence to show that the vehicle in question suffered from manufacturing defects which were categorically pointed out in writing to the OPs for rectification. On the other hand , the appeal is based on facts and such points of law as deserve positive consideration. The appeal in the result, succeeds . Hence,
Ordered
that the appeal be and the same is allowed on contest . The impugned order is set aside. Consequently, the complaint stands dismissed. There shall be no order as to costs.
JAGANNATH BAG DEBASIS BHATTACHARYA
MEMBER MEMBER
