ORDER

(Per: Mr. D.K. Tyagi, Member):

            These two appeals, one by the opposite party No. 1 and another by the opposite party No. 2 filed under Section 15 of the Consumer Protection Act, 1986, arise out of the order dated 11.09.2013 passed by the District Forum, Haridwar in consumer complaint No. 170 of 2012, whereby the District Forum has allowed the consumer complaint and directed the opposite party No. 2-I.S. Motors to change the engine and turbo of the vehicle of the complainant and provide him vehicle in order and the District Forum has also directed the opposite party No. 1 to pay Rs. 200/- per day as parking charges to the opposite party No. 3 from 14.01.2012 up to the date of actual delivery of the vehicle to the complainant and also directed to pay             Rs. 50,000/- as compensation to the complainant within one month from the date of this order.

2.       Briefly stated the facts of the consumer complaint are that the complainant had purchased a car named Tata Manza from the opposite party Nos. 1 & 2 on 27.01.2010 under warranty for two years.  After purchase, the said vehicle is being produced in the authorized service center of Tata Motors for repair and service according to the guidelines of Tata Motors.  The complainant has used Castrol 5 W-40 3300 engine oil according to the guidelines.  The complainant has never used any other engine oil in the said vehicle.  The complainant has pleaded that on 14.01.2012 he was going to Korba by his car named Tata Manza registration No. UK08-Q-0132, when the engine of the said vehicle stopped before 30 Kms. from Korba.  The complainant taken this vehicle to the authorized service center of opposite party No. 3 at Korba,  Budhia Auto on 15.01.2012 for check-up, where the opposite party No. 3 apprised the complainant that the engine and turbo of the vehicle has been damaged.  The complainant informed the opposite parties on Customer Complaint number, for which a report was prepared for sanction of approval by opposite party No. 3 and opposite party No. 3 advised the complainant to wait and the vehicle in question was kept in the garage of opposite party No. 3.  The authorized service center of opposite party No. 3 belongs to Tata Motors.  The complainant came to Haridwar from Korba and waited for approval.  The complainant had received a letter from the opposite party No. 3 with a note that the complaint of the complainant was not approved by opposite party Nos. 1 & 2, due to not using proper and genuine engine oil, resulting damage in engine and turbo.  The vehicle in question is also not covered under warranty, therefore, the complainant has to bear the expenses for change of engine and turbo.  The complainant has always used proper engine oil according to the guidelines and the vehicle in question always repaired or serviced in authorized service center.  The vehicle in question was purchased on 27.01.2010 and it is under warranty period on 14.01.2012 and 15.01.2012.  The vehicle in question has been standing in the garage of opposite party No. 3, since 15.01.2012.  Therefore, in these circumstances the opposite parties ought to grant permission.  The complainant is entitled for change of engine and turbo from the opposite parties being under warranty.  Due to non-approval, the complainant caused economic loss, as he is unable to use the vehicle in question.  In this way, there is unfair trade practice on the part of the opposite parties.  The complainant sent a legal notice to the opposite parties on 10.04.2012 through Sh. Dinesh Chand Gautam, Advocate, which was received by the opposite parties, but they neither replied the same nor removed the defects in the vehicle in question.  The opposite party No. 3 sent an e-mail to the complainant on 18.04.2012 that in case the complainant does not take his vehicle from the garage of opposite party No. 3, then parking charges of Rs. 200/- per day shall be levied.  This e-mail was replied by the complainant on 09.05.2012 through e-mail.  The complainant is not liable to pay any parking charge or other expenses from 15.01.2012 or 25.01.2012 to the opposite party No. 3.  Due to the deficiency in service on the part of the opposite parties and on account of keeping this vehicle in the garage of opposite party No. 3, the complainant suffered physical as well as mental harassment for which the opposite parties are responsible.  The complainant is entitled to get his vehicle in question in running condition with change of engine and turbo by the opposite parties.  The cause of action has arisen on 28.05.2012 when the opposite parties finally refused to change the engine and turbo of the vehicle in question.  As the vehicle was purchased at Haridwar, therefore, the District Forum, Haridwar has jurisdiction to hear and decide the consumer complaint. 

3.       The opposite party No. 1-Tata Motors has filed written statement before the District Forum and pleaded that it is denied that the vehicle in question is under warranty period.  It is also denied that the said vehicle of the complainant was always repaired or serviced at authorized service center and the complainant always used engine oil according to the guidelines.  Defect in engine and turbo of the said vehicle is due to poor maintenance of the vehicle by the complainant. The complainant does not come under the purview of definition of ‘consumer’ and there is no deficiency in service on the part of the answering opposite party.  The cause of action has arisen at Korba (Chhattisgarh), therefore, the District Forum has no jurisdiction to hear and decide the matter. 

4.       The opposite party No. 3-Budhia Auto Association Pvt. Ltd. has filed written statement before the District Forum and pleaded that it is admitted that the complainant came to the garage of answering opposite party on 14.01.2012 for repair of his vehicle and there was a defect in turbo charger and the complainant had instructed the workshop manager to repair the turbo charger on his own expenses.  It is clear from the service history of the vehicle that as for schedule fuel filter needed to be change at every 20000Kms., but as for service history shows customer refuse to do so.  Also air filter should be clean at every 5000Kms., but customer was not done.  Due to this air filter get chocked earlier.  The same was informed to the customer, which was refused to replace by the customer.  All above shows that the customer was not maintaining schedule servicing of his car, which cause the failure.  The answering opposite party has admitted that it is an authorized service center of Tata Motors.  The answering opposite party had informed the complainant on 21.01.2012 that the complainant had not obeyed the guidelines during previous servicing of the vehicle.  The answering opposite party is not responsible, as the opposite party No. 1 has refused to rectify the defects in the said vehicle due to not use of authentic engine oil, as per guidelines, by the complainant. The opposite party No. 3 has pleaded that it had neither sold the said vehicle to the complainant nor any service has been done by it before 14.01.2012, therefore, there is no deficiency in service on the part of the answering opposite party.  The answering opposite party has rectified the defect in vehicle in question, even then the complainant did not come to bring his vehicle.  The vehicle in question is still standing in the workshop of the answering opposite party and in these circumstances the answering opposite party is facing difficulty in servicing of other vehicles.  The complainant has made answering opposite party a necessary party, which is wrong.  The answering opposite party has neither caused any deficiency in service nor caused any physical and economic harassment to the complainant. On inspection, it came to the knowledge of the answering opposite party that due to under body hit the problem came in the intercooler hose pipe, which was changed at Ambikapur by the complainant.  Due to damage of this pipe, turbo charger became defective and pieces of turbo charger damage a part of engine resulting broken up piston ring and damage cylinder liner block.  The answering opposite party rectified these defects of the said vehicle, but the complainant neither came to the garage of answering opposite party, nor tested the vehicle after repair, therefore, there is no deficiency in service on the part of the answering opposite party.  In additional pleas, the answering opposite party has stated that under the guidelines the complainant has to change the 5W 40 Engine Oil after running the vehicle 10000 Kms., even then the complainant did not obey the direction.  The opposite party No. 1 has banned OW 40 Engine Oil in October, 2010.  The complainant is not a consumer of the answering opposite party and the answering opposite party is not a necessary party in the consumer complaint.

5.       The opposite party No. 2-I.S. Motors did not file any written statement before the District Forum, Haridwar, therefore, the consumer complaint proceeded ex-parte against the opposite party No. 2.

6.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint vide order dated 11.09.2013 in the above manner.  Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 330 of 2013 and whereas the opposite party No. 2 has filed the First Appeal No. 347 of 2013, thereby assailing the propriety and the legality of the impugned order passed by the District Forum.

7.       We have heard learned counsel for the appellant-Tata Motors Ltd. in First Appeal No. 330 of 2013; learned counsel for the appellant-I.S. Motors in First Appeal No. 347 of 2013 and also heard learned counsel for respondent Nos. 1 & 2 in both the appeals.  None has appeared on behalf of respondent No. 3 in both the appeals.  We have also perused the material placed on record.

8.       There is no dispute with regard to the fact that the vehicle in question was purchased by the respondent No. 1-complainant from the opposite party No. 1-I.S. Motors, Haridwar on 27.01.2010, which was under warranty for a period of two years.  There is also no dispute that this vehicle stopped on the way while going towards Korba, Chhatisgarh on 14.01.2012 and was taken away to the authorized service center of opposite party No. 3-Budhia Auto Association P. Ltd. for repairs.  The dispute is with regard to the fact that the engine and turbo of this vehicle was damaged due to carelessness and poor maintenance by the complainant during warranty period or not?

9.       Learned counsel for the appellant-Tata Motors in First Appeal No. 330 of 2013 has submitted that the impugned judgment and order is based on surmises and conjectures and without any reasoned finding and as such, is liable to be set aside.  The findings of the District Forum are very vague and the order is non-speaking and unjust.  The District Forum has no jurisdiction to deal with the alleged complaint.  The District Forum had erred in not going through the written statement filed by the opposite parties as well as the affidavit and evidence filed by it and accordingly, the impugned judgment and order is liable to be set aside.  The District Forum has erred in holding that the appellant is liable towards the respondent No. 1 for paying damages to the tune of Rs. 50,000/- and also per day charges to respondent No. 3 for unauthorized parking of the vehicle.  The District Forum has erred in not considering the fact that because of the own neglects and latches on the part of the respondent No. 1-complainant, he had failed to take back his vehicle after necessary repairs from respondent No. 3 and since the warranty of the vehicle had expired and accordingly he was bound to have paid the cost of the same.  It is an admitted fact that the complainant had failed to get the fourth service of the vehicle done and even the required services were got done, when they had expired and for his own latches, the respondent No. 1 cannot make the appellant liable in any manner whatsoever.  The District Forum has failed to consider the fact that no cause of action has arisen against the appellant, since the respondent No. 1 was bound to have acted as per the warranty terms and any breach thereof, disentitled the complainant for claiming any relief.  No alleged cause of action could have accrued to him for his failures in observing the warranty terms.  The District Forum has failed to consider the fact that no deficiency in service had been caused by the appellant and even the respondent Nos. 2 & 3 had provided all the entitled services well in time and replaced the parts as we desired from time to time under warranty.  The respondent No. 1 had himself violated the terms and conditions of the warranty policy and procedure and he has not entitled to claim any relief.  Instead of directing the respondent No. 1 to get the vehicle corrected on payment basis, due to his own breach of warranty, award for the cost of Rs. 50,000/- as damages is totally erroneous.  The District Forum has failed to consider the fact that the vehicle was solely driven, controlled and managed by the employees and the same was mismanaged by them and for their negligence and carelessness the appellant should not have been made liable. 

10.     Learned counsel for the appellant-I.S. Motors in First Appeal No. 347 of 2013 has submitted that the District Forum has passed to proceed the consumer complaint against the appellant-opposite party No. 2 ex-parte on 04.03.2013.  The appellant is a dealer regarding the vehicle and the respondent No. 2-Tata Motors is the manufacturer of the vehicle.  The job of the appellant is to sell the vehicle and any manufacturing defect is rectified by the manufacturer of the vehicle.  The appellant is authorized to give free services as well as other services during warranty period.  The appellant always gave satisfactory repair and service to the complainant-respondent for his vehicle.  There is no deficiency in service on the part of the appellant, as has been shown in the service history. 

11.     Learned counsel for the respondent No. 1 has submitted that the defect in the vehicle appeared on 14.01.2012.  His vehicle was within warranty period.  The respondent No. 1 availed free services as well as other services at the garage of the opposite party No. 2-I.S. Motors, Haridwar, where the dealer changed the oil of the said vehicle, it may be not authentic oil by opposite party No. 2, resulting the defect in turbo of the vehicle.  The defective oil might have caused damaged in engine as well as turbo.  There is no evidence on record that this vehicle was ever met with an accident or hit by any stone. 

12.     The appellant-Tata Motors has filed certain documents on the record of District Forum, Haridwar, which were filed by the opposite party No. 3-respondent No. 3, the authorized service center at Korba, Chhattisgarh.  There is a letter dated 14.10.2009 of Tata Motors Ltd. to all the dealers regarding recommended engine oils for new Indigo Manza (paper No. 23).  Service Bulletin of Tata Motors Ltd. to all passenger car dealers dated 15.10.2009 regarding free service policy and service schedule for Indigo Manza (paper No. 24).  Service Update dated 26.10.2010 to all the dealers regarding interim approval for Mobil Super 3000 Formula I 5W 40 on Manza fitted with 90PS Quadrajet engines (paper No. 26), Service Update dated 28.02.2011 regarding approval for Castrol Edge 5W 40 on Manza fitted with 90PS Quadrajet engines (paper No. 27).  The respondent No. 3 wrote a letter dated 09.02.2012 to the respondent No. 1 and informed the respondent No. 1 that “After diagnosis we found that your Engine & Turbo has been damaged due to Service History Not Maintained in Oil & Filter Maintenance”. The appellant has filed Dealer Complaint Investigation Report dated 21.01.2012 (paper No. 29) and also filed service history of vehicle No. UK08-Q-0132 dated 11.08.2011, 01.04.2011, 14.07.2010 and 03.03.2010 (paper Nos. 30 to 33) and job slip No. 1088 dated 15.01.2012 (paper No. 34). 

13.     In para No. 3 of the consumer complaint, the complainant has averred that the opposite party No. 2 had used Castrol 5W 40 3300 engine oil in the vehicle of the complainant since beginning according to the directions and guidelines and the complainant had never used any other engine oil in his vehicle.  On 14.01.2012 while the complainant was going to Korba by his vehicle named Tata Indigo Manza, this vehicle stopped 30 Kms. from Korba and the complainant taken this vehicle to the authorized service center of opposite party No. 3-Budhia Auto Association P. Ltd. for check-up, where it was diagnosed that the engine and turbo of the said vehicle are damaged.  The opposite party No. 3 prepared a report for approval and the vehicle was parked at the service center.  The opposite party No. 3 informed the complainant by a letter dated 09.02.2012 that after check-up of the vehicle, the engine and the turbo are found damaged and engine oil was found not proper, therefore, the complaint has not been approved by the opposite party Nos. 1 & 2.  The opposite party No. 3 also informed in the letter that the vehicle is not under warranty period, therefore, the complainant shall be responsible for change of engine and turbo.  In para No. 8 of the consumer complaint, the complainant has stated that he had purchased the said vehicle on 27.01.2010 and the same is under warranty on 14.01.2012, the said vehicle is standing at opposite party No. 3 authorised service center since 15.01.2012.  Therefore, the complainant is entitled for change of engine and turbo free of cost.  The opposite party No. 3 had also informed the complainant by a letter dated 18.04.2012 that in case the complainant does not take the said vehicle from the service center of the opposite party No. 3, then the parking charges @ 200/- per day shall be levied from the complainant.

14.     From the perusal of the documents filed by the appellants in both the appeals, it is evident that the complainant-respondent No. 1 availed first free service on 03.02.2010 and running repairs on 23.02.2010 and 03.03.2010.  The complainant has also availed second free service on 14.03.2010 and running repairs on 18.03.2010.  The third free service has been availed by the complainant on 24.05.2010 and running repairs on 12.06.2010.  Again the complainant has availed fourth free service on 01.10.2010 and running repairs on 14.01.2011, 01.04.2011 and 12.04.2011. The complainant had taken paid service on 11.08.2011 at running of vehicle at 41831 Kms.  There is no evidence on record to show that after this paid service whether the complainant produced his vehicle before I.S. Motors, the dealer of the vehicle for service or at any other authorized service center of Tata Motors.  This vehicle when produced before the Budhia Auto Association at Korba, Chhattisgarh on 15.01.2012 at Kms. 58971.  The service history (paper No. 27) dated 30.01.2012 also indicates that while the vehicle was produced before Budhia Auto Association, Korba, Chhattisgarh covering Kms. was 58977.  There is no explanation of the complainant about the paid service or no services of the vehicle in authorized service center of Tata Motors Ltd. or at other service center and there is no evidence on record to show that what engine oil was used during service between 41831 Kms. and 58977 Kms.  The complainant has failed to show what engine oil was used and where this vehicle was serviced between 41831 and 58977 Kms. In absence of any evidence, it can safely presume that this vehicle was carelessly and negligently used for 17000 Kms. and the complainant had never used authentic and genuine engine oil according to the directions of Tata Motors Ltd. and never produced this vehicle for further services between 41831 Kms. to 58977 Kms.  It is clear from the service history (paper No. 30) that the opposite party No. 2-I.S. Motors had used authentic engine oil Castrol Edge 5W 40 3300 on last paid service dated 11.08.2011, but after this paid service the complainant had never produced the vehicle for other paid service after run of 41831 Kms. upto running of 58977 Kms.  Therefore, there is negligence and carelessness on the part of the complainant-respondent No. 1 himself.  The respondent No. 3 had informed the complainant by letter dated 09.02.2012 that after diagnosed they found that engine and turbo of the vehicle of the complainant has been damaged due to service history not maintained in oil and filter maintenance (paper No. 28) and after all parameters followed by Budhia Auto Association their principal (TML PCBU) has rejected the warranty due to history shows oil (grade) and filter change interval is not proper as per TML schedule and closed the complaint.  Letter through Gmail dated 18.04.2012 and 09.05.2012 (paper Nos. 34 and 35) on record of First Appeal No. 347 of 2013 also indicates that the service advisor for Budhia Auto Association had informed the complainant that the complainant is not responding regarding the vehicle standing at authorized service center of respondent No. 3 and also advised the complainant to give further instruction or permission for engine repair work, otherwise Rs. 200/- per day as rent shall be charged.  Further in the written statement filed by the opposite party No. 3 in para No. 8, it is clearly pleaded that the defects in the vehicle has been rectified by the respondent No. 3 and respondent No. 3 had already informed the complainant to take the vehicle, even then the complainant is not coming or willing to take the vehicle from the workshop of respondent No. 3.  There is no replication against this fact mentioned by opposite party No. 3, in its written statement.  Therefore, though the vehicle in question was under warranty up to 27.01.2012, but prior to this date, the engine and turbo became defective due to negligence and carelessness of the complainant by not using genuine and authentic engine oil and also not producing this vehicle for service after a run of 41831 Kms. up to 58977 Kms. 

15.     Learned counsel for the appellant has placed reliance on a judgment of Hon’ble National Commission in the case of Piaggio Greaves Vehicle Pvt. Ltd. & Anr. vs. Ramakanta Samal & Ors.; IV (2004) CPJ 252 (NC).   In this case the Hon’ble National Commission has held that as per terms and conditions of warranty, warranty will be null and void, if any part/assembly is repaired or replaced at unauthorized workshop or by unauthorized mechanics.  In the present case, the opposite party No. 3-respondent No. 3 has clearly pleaded in the written statement that on minute inspection of the vehicle, it was came to knowledge that the intercooler hose pipe of the vehicle was became defective due to under body hit and the complainant had replaced the intercooler hose pipe at Ambikapur.  Due to damage of intercooler hose pipe, the turbo charger became defective and pieces of turbo charger damaged one part of the engine, resulting damage of piston ring and cylinder liner block.  This vehicle was being plied/carried from Ambikapur to Korba, resulting damage in engine and turbo charger etc.  This citation is applicable in the instant case also, because the complainant either not take further paid services of the vehicle after a run of 41831 Kms. or the vehicle was repaired or serviced at any other unauthorized service center, where genuine or authentic engine oil, as per directions and guidelines, was not used.  Learned counsel for the appellant has also cited a decision of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in the case of Central Automobiles & Ors. vs. Simplex Engineering & Foundry Works Ltd.; I (2004) CPJ 374.  In the said case the State Commission, Chhattisgarh has held that the essential terms of warranty not complied by complainant – free servicing of vehicle not availed within stipulated running limits, defects developed – opposite party not liable – complainant cannot take shelter of warranty.  The District Forum erred in allowing complaint – Order set aside.  This citation is also applicable in the instant case, as the respondent No. 1-complainant never produced his vehicle for service after running of vehicle at 41831 Kms. before any authorized service center of the appellant and there is no evidence on record that between running limit of 41831 Kms. and 58977 Kms. any genuine or authentic engine oil was used in the said vehicle. 

16.     For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and recording an incorrect finding, erred in allowing the consumer complaint.   The order impugned being not sustainable in the eyes of law, is liable to be set aside and both the appeals are, thus, fit to be allowed. 

17.     In view of the above, both the appeals are allowed.  The order impugned dated 11.09.2013 passed by the District Forum is set aside and consumer complaint No. 170 of 2012 is dismissed.  No order as to costs.

18.     Let the copy of the order be kept on the record of First Appeal No. 347 of 2013. 

(MRS. VEENA SHARMA)                               (D.K. TYAGI)                      (JUSTICE B.C. KANDPAL)