F.A.No. 995 OF 2006 AGAINST C.D.No.164 OF 2005
 DISTRICT FORUM-II VISAKHAPATNAM.

Between:

M/s Tata Motors Ltd., formerly TELCO
Rep. by its Deputy Manager (Customer Support)
M.Venkat Reddy, II Floor, Surya Towers,
S.P.Road, Secunderabad

                                                          Appellant/opposite party no.1

A N D

1.    Smt Kilaparthy Aravinda
W/o Uma Maheshwara Rao
Hindu, Aged about 35 years,
R/o 9-16-36/1, Rams Arcade,
C.B.M.Compound, Visakhapatnam

Respondent/complainant

2.    The Managing Director
Sri Ramdas Motor Transport Ltd.
TATA Show Room Siripuram,
Visakhapatnam

                                                              Respondent/opposite party no.2

Counsel for the appellant                         Ms  Shireen Sethna Baria
Counsel for the respondent  No.1           Sri Jaya Raju
Counsel for the respondent no.2             Smt Anita Chandra

F.A.No. 1027 OF 2006 AGAINST C.D.No.164 OF 2005

Between:

The Managing Director
Sri Ramdas Motor Transport Ltd.
rep. by its Joint Managing Director
TATA Show Room Siripuram,
Visakhapatnam
                                                                   Appellant/opposite party no.2

A N D

1.    Smt Kilaparthy Aravinda
W/o Uma Maheshwara Rao
Hindu, Aged about 35 years,
R/o 9-16-36/1, Rams Arcade,
C.B.M.Compound, Visakhapatnam

Respondent/complainant

2.    M/s Tata Motors Ltd., formerly TELCO
Rep. by its Deputy Manager (Customer Support)
M.Venkat Reddy, II Floor, Surya Towers,
S.P.Road, Secunderabad

                                                              Respondent/opposite party no.1

Counsel for the appellant                         Smt Anita Chandra
Counsel for the respondent  No.1           Sri Jaya Raju
Counsel for the respondent no.2             Served

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        TUESDAY THE SECOND DAY OF JUNE                        

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

                    These appeals seek to assail the order dated 15.6.2006 of the District Forum-II, Visakapatnam in C.D.No.164 of 2005.  By this order the District Forum held that M/s Tata Engineering Marketing and Customer Support and SRMT Ltd., Visakhapatnam guilty of supplying a Tata Sumo Ezi vehicle with manufacturing defects to the complainant, K.Aravinda, original complainant and directed for refund of purchase value of the Tata Sumo vehicle, Rs.4,90,491/- with interest @ 12% per annum and Rs.10,000/- towards compensation and costs of Rs.2,000/-. 

                    Being aggrieved by the impugned order M/s Tata Engineering Marketing and Customer Support have come up in this appeal.  The opposite party no.2 in this appeal is M/s SRMT Limited, the dealer of M/s Tata Motors.  For our sake of convenience , parties are referred to as they were arrayed in the complaint.

                    The case before the District Forum was as under:

                    The complainant purchased TATA Sumo Ezi manufactured by the opposite party no.1 herein and delivered to her by the opposite party no.2 on 29.5.2002 which was registered as AP 31 AA 559.  The vehicle was delivered with a punctured extra tyre.  The puncture to the tyre could not be visible as the tyre was covered by the plastic dome.  The opposite party no.2 apologized and replaced the tyre with a new tyre subsequently.  The Jeep was a defective vehicle.  Uncomfortable to travel by and it used to produce all types of noise that a damaged or defective vehicle could do it.  On 24.6.2002 the opposite party no.2 promised to repair the vehicle and at the time of delivery of the vehicle the opposite party no.2 admitted that there were defects which could not be rectified by their mechanics and as such informed the same to the opposite party no.1 who had sent an engineer from Pune.  The Engineer informed the complainant that it was very dangerous to drive the vehicle and the vehicle was handed over to the complainant requesting her to use it for few days and return the vehicle in case any problem or defect persists.  The defects continued causing inconvenience to the complainant. 

          On 1.7.2002 the complainant handed over the vehicle to the opposite party no.2 to rectify the defects.  Without rectifying the defects the vehicle was delivered it to the complainant on 6.7.2002.  The tyres of the vehicle were unevenly rubbed though they were aligned periodically and were replaced with new tyres by the opposite party no.2.  The opposite party no.2 intentionally delivered a faulty vehicle to the complainant with the knowledge that there were manufacturing defects in the vehicle which could not be rectified permanently.  The complainant had purchased the jeep on finance and she had no satisfaction of owning a new vehicle.  At 10393 kms the tyres were replaced and at 15000 kms the chassis frame of the vehicle was replaced by the opposite party no.1 and opposite party no.2 by issuing additional six months warranty for the vehicle and at 49,900 kms on 9.1.2004 all the four tyres were replaced, all these replacements were done after the lapse of warranty period which proved the manufacturing defects in the vehicle.    The opposite party no.2,  in the month of January 2005,  had taken the vehicle and kept with them promising to replace it with a new vehicle which was not done so compelling the complainant to get issued a legal notice through her advocate on 8.7.2002 for which a formal reply was given by the opposite party no.1 and opposite party no.2. 

                    The opposite party no.2 contested the complaint by filing counter which was adopted by the opposite party no.1.  It was contended that the complainant and her brother inspected the extra tyre at the time of delivery of the vehicle.  The vehicle was provided with a power steering which cannot be used like a vehicle fitted with ordinary steering.  The driver of the complainant might not have accustomed to drive the vehicle fitted with power steering.  On 24.6.2002 the opposite party no.2 checked the vehicle and found everything in perfect condition and the same was informed to the brother of the complainant who signed satisfaction note dated 24.6.2002 at the time of delivery of the vehicle to them.  The opposite party no.2 never informed the opposite party no.1 to depute an engineer to look into the problems of the vehicle.  The Asst. Manager of the Opposite party no.1 Company visited Visakhapatnam during pre-monsoon check up campaign on 23.6.2002 and 24.6.2002 where he took trial of the vehicle along with the brother of the complainant and informed him that the vehicle was in perfect condition.  The opposite party no.2 had done wheel alignment and servicing at 4000 kms and on 2.7.2002 delivered the vehicle to the brother of the complainant in the presence of Sri Samba Murty and Jagga Rao who had taken trial of the vehicle and found everything perfect and they also advised the brother of the complainant to drive the vehicle slowly and steady. 

          The Central Link of the vehicle got damaged externally which resulted the worning out of one tyre and as a part of maintenance of cordial relationship with customers the opposite party no.2 replaced one tyre and central link free of cost and they also replaced chassis frame of the vehicle free of cost at 14987 kms on 25.11.2002 as a good will gesture and extended warranty for six more moths for the vehicle for manufacturing defect.  At 49900 kms on 9.4.2004 the opposite party no.2 replaced the tyres of the vehicle though average life of the tyre is 35000 kms only.  At 52202 kms drive on 14.4.2004 and also subsequently on 15.5.2004 the vehicle and tyres were checked and found in perfect condition.  The opposite party no.2 addressed a letter dated 30.9.2004 to the complainant giving details of action taken by them.  On 27.11.2004 the vehicle was checked and tyres were found in perfect condition and on 10.11.2004 the complainant took delivery of the vehicle.  On 6.1.2005 the complainant brought the vehicle to the workshop of the complainant complaining that it had manufacturing defects and demanded for a new vehicle leaving the Tata Sumo there and the opposite party no.2 informed the same to the opposite party no.1 company.  The complainant did not take back the vehicle in spite of request for several times made by the opposite party no.2.  The vehicle cannot be replaced with a new vehicle as there were no manufacturing defects and warranty was expired by 28.11.2003 which was extended till 28.5.2004.

                    After considering the rival contentions and the material on record, the District Forum came to conclusion that there were manufacturing defects in the Jeep and it constituted deficiency in service on the part of the opposite parties no.1 and 2.

                    The point for consideration is whether the TATA Sumo purchased by the complainant does suffer from any manufacturing defect and if so to what relief the complainant is entitled to?

                    The sale of the TATA Sumo Ezi by the complainant which was manufactured by the opposite party no.1 company and the replacement of Chassis frame and tyres of the vehicle are not in dispute. It is also not in dispute that the vehicle was checked on 24.6.2002, 1.7.2002, 25.11.2002, 14.4.2004, 15.5.2004, 27.11.2004 and on 6.1.2005.  Job Card dated 24.6.2002 issued by the Service Advisor of opposite party no.2 contains the problems as complained by the respodnentno.1 that there was some noise and improper body action.  Wheel alignment and suspension check up done is established by Labour Sheet for repairs issued by opposite party no.2.  The satisfaction note dated 24.6.2002 evidences the satisfaction expressed by the complainant on vehicle being repaired  by the opposite party no.2.  Job Card dated 01.7.2002 shows the complaints in regard to the Dash board and silencer making noise and the vehicle was being pulled towards left hand side.  Again on 1.7.2002 the complainant issued Satisfaction Note that the vehicle was repaired to her satisfaction. Any of these repairs do not speak of any manufacturing defect in the vehicle.   It is not in doubt that the Jeep was well within the period of warranty when the problems arose. 

          The opposite party no.1 contends that the vehicle has no manufacturing defect making the complainant entitled for replacement with a new one.  The District Forum treating the matter as an exceptional and extreme case directed for refund of value  of the vehicle.  In other words, the District Forum held that there was manufacturing defect in the vehicle.  It is true that the vehicle was attended on during and after the warranty period.  In fact the warranty period expired by 28.11.2003 and it was extended till 28.5.2004.  To come to the conclusion whether the vehicle suffered manufacturing defect, an expert opinion in the case of  the vehicle in question is essential.  The District Forum came to the conclusion that the vehicle suffered manufacturing defect for the reason that the chassis frame was replaced which we do not agree.  The inherent manufacturing defect in the TATA Sumo has not been established either by examination of a mechanic of the opposite party no.2 or any other private mechanic or engineer who only are competent to detect and determine whether there was any manufacturing defect in the vehicle.  Replacement of the chassis frame itself does not constitute a manufacturing defect. According to the complainant and the opposite parties tyres, bearings and chassis of the vehicle were replaced free of cost.  The replacement of these three parts of the vehicle in any event can be termed as the manufacturing defect that the vehicle suffered from.  In order to establish the fact that the vehicle was suffering from manufacturing defect, it is the duty of the complainant to establish the fact by examining an expert. 

          The District Forum gave a finding that the replacement of chassis in the absence of any accident to the vehicle would constitute manufacturing defect.  The opposite parties have contended that the chassis was replaced at the request of the complainant.  There has been no denial of the fact.  As aforesaid, replacement of the said parts do not lead to a situation where the vehicle can be held to be suffering from manufacturing defect.  Therefore, the finding of the District Forum that the vehicle suffered from manufacturing defect and as such it has to be replaced with a brand new vehicle of the same type or in the alternative, the opposite parties were held liable to pay the cost of the vehicle, which is not sustainable.  The opposite partyno.1 contends that the opposite party no.2 alone is liable for any manufacturing defect or other defects found in the vehicle.  This submission is devoid of any merits.  Opposite party no.1 represents the opposite party no.2 in all aspects for the purpose of sale of vehicles manufactured by the opposite party no.2.  Therefore, the opposite parties no.1 and 2 are jointly and severally liable to replace any defective part of the vehicle sold by them or to pay compensation to the purchaser who suffered inconvenience, discomfort owing to the purchase of defective vehicle sold by the opposite party o.1 and manufactured by the opposite party no.2. 

           In Maruti Udyog Ltd., Vs Susheel Kumar Gabtora reported in AIR 2006 SCC 1586 the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car.  In another case, the Hon’ble National Commission held in M/s TELCO Ltd., another Vs. M.Moosa, 1986-94 page 1367 (NS) it was held that u/s 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced. 

                    The complainant abandoned the vehicle on 5.1.2005 with the opposite party no.2.  The complainant ought not to have abandoned the vehicle since it is not her case that  the vehicle was not in roadworthy condition.  In similar circumstances, Hon’ble National Commission in Premanchal Motors Pvt. Ltd., Vs. Ramdass and Ors., II (2009) CPJ 987 (NC) held as under:

“ In our considered view, as an ordinary practice such abandonment of a new vehicle so after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned, is not prudent conduct on the part of a consumer, even if the consumer has justified grounds for serious dissatisfaction with the performance of the new vehicle or even after its repairs.  In the best of circumstances, such abandonment is entirely to the disadvantage of the consumer for the vehicle can only deteriorate if left in the so-called care of an indifferent dealer who too may have his own reasons to feel aggrieved that his repairs bills and garage charges remain unpaid.  This conduct is even more imprudent for a consumer who has purchased the vehicle in question after availing of a bank loan and is thus liable in any case to repay that loan.  The conduct of the complainants in this case falls in this category.  If they had reasons to feel unhappy with the condition of the tractor even after repeated repairs during the warranty period, they could file a consumer complaint, which they did in this case even before the warranty period was over.  Therefore, they had no reason to go to the extent of abandoning the tractor altogether at the garage/workshop of the same dealer against which they had filed the complaint. “

          In the case on hand, the opposite party no.2 though stated that they requested the complainant to take delivery of the Jeep, there is no evidence on record to the effect.  It is not only obligatory on the part of the opposite party no.2 it is their part of business transaction to extend the best of their service to their customer.  The jeep was abandoned by the complainant since 5.1.2005 and it has been in the possession of the opposite party no.2 since then till date and it is not clear whether the opposite party no.2 has been making use of the jeep either for their own use or to keep the vehicle in fit condition so that it would be roadworthy as and when the complainant takes its delivery.  Therefore, lapse cannot be found only on the part of the complainant it can be traced in the attitude and conduct of the opposite party no.2 also.  Taking into consideration of all these circumstances, we award an amount of Rs.50,000/- towards compensation for the discomfort, inconvenience caused to the complainant due to sale of the defective vehicle to her and the opposite parties are liable to repair, Tata Sumo Ezi bearing No.A.P.31-AA-559 make it roadworthy and restore it to the complainant.  To this extent the order of the District Forum ahs to be modified.

          In the result these appeals are allowed in part.  Opposite parties no.1 and 2 are directed to pay Rs.50,000/- to the complainant and repair  Tata Sumo Ezi bearing No.A.P.31-AA-559 by making it roadworthy and restore it to the complainant.  Time for compliance four weeks.

                                                                   PRESIDING MEMBER

                                                                             MEMBER

                                                                     Dated: 02.06.2009