A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1654/2008 against C.C. 474/2007, Dist. Forum-I, Hyderabad.
Between:
1) M/s. Tata Motors Ltd.
2nd Floor, Surya Towers
‘C’ Block, 104, S.P. Road
Secunderabad-500 003.
2) Tata Motors Passenger Car Business
Unit-406, 4th Floor, Blue Cross Chamber
No. 11 Infantry Cross Road
Bangalore-560 001. *** Appellants/
Ops 2 & 3
And
1) Smt. Shobha Rani
W/o. Late Sri Krishna Prasad
Age: 53 years
Prop. Shiv Sai Krishna Services
15-7-154/1, Kolsawadi,
Begum Bazar, Hyderabad. *** Respondent/
Complainant.
2) Malik Cars
Rep. by its General Manager
D. Narendra Kumar
8-1-328/11, Sheikpeta Nala
Opp. Laxminagar
Towlichowki Road, Hyderabad. *** Respondent/
O.P. No. 1
Counsel for the Appellant: M/s. Shireen Sethna Baria
Counsel for the Resp: M/s. Manish Kumar Agarwal (R1)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
WEDNESDAY, THIS THE FIRST DAY OF DECEMER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the Ops 2 & 3 manufacturer as well as distributor against the order of the Dist. Forum directing them to replace a new car worth Rs. 3,64,640/- with 10% depreciation on the said amount while taking back the old vehicle together with compensation of Rs. 10,000/- and costs of Rs. 2,000/-.
2) The parties are described as arrayed in the complaint for felicity of expression and to obviate confusion.
3) The case of the complainant in brief is that she has purchased a Tata Indica car on 3.2.2006 from Op1 manufactured and distributed by Ops 2 & 3 respectively for Rs. 4,29,472/-. However the actual price was Rs. 4,12,375/-. Op1 had collected excess of Rs. 17,097/-. A warranty of 18 months was given on the card. While so she has given the car for servicing to Op1 on 23.6.2006 with a complaint that the engine was consuming heavy engine oil and there was roughness while driving the vehicle. There was knocking of engine at some times. Op1 had represented that it was a minor problem and promised to attend and would repair the same. After repeated requests it was delivered on 26.6.2006 with odometer reading at 5398 evident from job card. When questioned Op1 informed that there was some manufacturing defect and assured that it would be repaired and there would not be any problem in future. However, the same has been continued. Therefore she has entrusted the vehicle on 23.6.2006 to rectify the defects for which they have stated that they cannot get it repaired. Since the troubles were emanating during the warranty period she has issued notice followed by the complaint for replacement of car with a new one or in the alternative refund Rs. 4,29,472/- and also refund Rs. 17,097/- being the excess amount collected besides Rs. 1,844/- spent towards repairs and Rs. 60,000/- towards mental agony and costs.
4) R1 filed counter resisting the case. The car was purchased in the name of M/s. Shiv Sai Krishna Services and therefore the complainant cannot file the complaint in her personal capacity. It was not for her personal use. A discount of Rs. 10,000/- was given as against total cost of Rs. 3,75,640/-. An amount of Rs. 1,92,472/- was paid on the road value or price and therefore she cannot seek refund of the amount. On 23.6.2006 when the meter reading was 5,398 KMs the vehicle was handed over with a complaint that (i) fuel average low (ii) scheduled service (iii) poor pick up (iv) scheduled service. The said works were executed and test drive was conducted evident from letter dt. 19.9.2006. The test drive was conducted only after taking permission from the complainant. Whatever problems that were surfaced were rectified. There was no delay in delivery of the vehicle. The vehicle was running in a good condition and it is only an after thought that such an allegation was made. There was no need to open the engine for rectifying whatever complaints were made. The allegation that there was break down of vehicle on 2.5.2007 was false. There was no manufacturing defect and therefore the complainant was not entitled to any of the reliefs sought for. There was no deficiency in service on its part and prayed for dismissal of the complaint with costs.
5) Ops 2 & 3 equally resisted the case. The complainant had admittedly used the car for 15 months, and the fact that it met with an accident was suppressed. The complainant had used the vehicle extensively. Except for some small minor repairs there was no major problem. There is no proof that there was manufacturing defect except the bald statement of the complainant. Opinion of expert was not furnished in order to show that there was manufacturing defect. In fact it has covered 16,627 KMs as on 15.6.2007 evidencing that there was no manufacturing defect. The job card discloses that first free service was done at 5,398 Kms on 26.6.2006. Second
free service was done at 10,335 KMs The vehicle was brought for denting and the complainant had paid Rs. 1,844/- indicating that it met with an accident. Third service was done at 15,353 Kms on 12.4.2007. The vehicle was brought again on 15.6.2007 at 16,161 Kms for running repairs. The complainant has taken delivery of the vehicle only after satisfying that there was no manufacturing defect whatsoever. The warranty does not apply as the car met with accident as evidenced from owner’s manual. There was no manufacturing defect nor they were liable to replace it with a new one. Therefore they prayed for dismissal of the complaint with costs.
6) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A28 marked while the appellants filed the affidavit evidence of its Divisional Manager and did not file any documents.
7) The Dist. Forum after considering the evidence placed on record opined that the job cards Exs. A8, A18, A23 to A28 do show beyond doubt that there was manufacturing defect and the complainant had encountered the problems. Therefore it directed the Ops to replace a new car worth Rs. 3,64,640/- with 10% depreciation on the said amount while taking back the old vehicle together with compensation of Rs. 10,000/- and costs of Rs. 2,000/-.
8) Aggrieved by the said decision, the appellants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the complainant has purchased the vehicle in the name of M/s. Shiv Sai Krishna Services for commercial purpose. No evidence was let in to show that there was manufacturing defect in the vehicle. No expert was examined in order to show that there was manufacturing defect contrary to the decisions of Hon’ble Supreme Court & National Commission. Therefore they prayed that the complaint be dismissed.
9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis- appreciation of fact or law?
10) It is an undisputed fact that the complainant has purchased a Tata Indica car from Op1 dealer on 3.2.2006 for a consideration of Rs. 3,65,640/- in the name of M/s. Shiv Sai Krishna Services vide Ex. A2 sales invoice. There is a warranty of 18 months. For the first time the complainant brought the vehicle on 23.6.2006 when the meter reading was at 5,398 Kms complaining (i) fuel average low (ii) scheduled service (iii) poor pick up (iv) scheduled service. Op1 had conducted the test drive which according to it after obtaining telephonic permission from the complainant evident from letter dt. 19. 9. 2006. Since the vehicle was taken for test drive at 5,398 Kms it cannot be said that Op1 would return the vehicle on the same day. At any rate, the vehicle was handed over to the complainant after three days. The opposite parties contended that the vehicle met with an accident and it was brought to Op1 on 18.11.2006 for getting it repaired evident from job card. The vehicle was brought at a mileage of 10,234 KMs. Free service was carried out however in regard to damage caused due to accident an amount of Rs. 1,844/- towards denting, painting, repair of rear left door, light etc. was charged. It is also not in dispute that the complainant had brought the vehicle for 3rd service at 15,353 KMs on 12.4.2007. The fact that the vehicle was brought for 3rd servicing without any complaint of manufacturing defect of the vehicle would itself show that the complainant had never encountered any manufacturing defect. It may be stated herein that the vehicle was brought on 15.6.2007 at 16,161 Kms for rectifying the running repairs. The complainant had taken delivery of the vehicle without any protest written on the job card. It may be stated herein that the complainant could not have run for 15 months covering a distance of 16,161 KMs had there been a manufacturing defect. The car was extensively used. Evidently the complainant did not examine any expert to state that there was manufacturing defect in the vehicle. The Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra reported in II (2006) CPJ 3 (SC) held that if the warranty conditions do not provide for total replacement of the car the court cannot order for replacement.
11) A perusal of the job card shows that the complaints were minor in nature, it may be due to normal wear and tear. All through the complainant did not question or dis-satisfy with the service or repairs carried out even when it was met with an accident. The complainant could not establish that in spite of three free services there was heavy consumption of engine oil. Since the complainant did not allege the car was purchased by her on behalf of Shiv Sai Krishna Services was for commercial purpose, and it is not known whether it was a proprietory concern or a partnership firm, and without any evidence, we may not be able to determine whether it was for commercial purpose.
12) At the cost of repetition, we may state that the complainant could not establish that there was any manufacturing defect. On the other hand she had used the vehicle for a period of 15 months and covered 16,161 KMs without any defect. Whatever the problems that were encountered they were satisfactorily looked into evidenced from job cards. The Dist. Forum did not consider any of these documents. The complainant has not proved by leading any evidence that there was manufacturing defect in the car. We do not agree with the opinion expressed by the Dist. Forum in this regard.
13) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed with costs computed at Rs. 2,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 01. 12. 2010.
*pnr
“UP LOAD – O.K.”
