11.11.2014.

MRIDULA ROY, MEMBER.

This order will govern both the appeals bearing Nos. FA/153/2014 and FA/157/2014.

The instant appeal is directed against the judgment and order being 15 dated 06.01.2014 passed by Ld. District Forum, Kolkata, Unit – I in Complaint Case being No. 518/2012 allowing the same on contest against all O.Ps with cost, directing the O.P. Nos. 3 & 4 to refund the sum of Rs.7,09,013/- only to the complaint as to the selling price of the car in question, further directing all the O.Ps jointly and severally to pay the Complainant a sum of Rs.50,000/- only towards compensation for harassment and mental agony along with cost of litigation of Rs.10,000/- only within 45 days from the date of communication of the order, in default, an interest @ 10% per annum shall accrue over the entire sum due to the credit of the Complainant till full realization. 

Being aggrieved by this order the O.P. Nos. 1, i.e. the authorized dealer of Tata Motors  & O. P. No. 2, i.e. the workshop of the dealer have preferred the instant appeal being No. FA/153/2014 on the grounds, inter alia, that the vehicle was sold to the Complainant and the Complainant was entitled to  avail the service as per warranty norms as given by the Tata Motors Limited.  Since the vehicle in question met with an accident that won’t be within the warranty terms and as such, the Appellants denied to render the service and further, the alleged manufacturing defect was subject to expert opinion but the Ld. District Forum without having the same construed the allegation to be true and arrived at a wrong decision which should be dismissed in limine.

The O.P. Nos. 3 & 4 i.e. manufacturer of the vehicle and its Marketing and Customers Support Passenger Car Business Unit have the preferred the appeal being No. FA/157/2014 on the grounds, inter alia, that the Ld. District Forum failed to appreciate that there was no contractual obligation on the part of the manufacturer, no manufacturing defect had been detected by an expert, the liabilities of the parties are circumscribed by explicit warranty given by the manufacturer, the minor problem of the said vehicle had cropped up due to negligence on the part of the Complainant and thus passed the impugned order which should be set aside with cost.

The case of the Complainant (Respondent No. 1 herein), in brief, is that he purchased a car Tata Indigo Manza – Q – Jet Aura Diesel Car from the O.P. No. 1 who is the authorized dealer of the O.P. Nos. 3 & 4 (Respondent Nos. 2 & 3 herein) at a consideration of Rs.7,09,013/-.  The said car was delivered to the Complainant on 22.09.2010.  The Complainant stated that he obtained a car loan of Rs.2,50,000/- from the SBI which he paid towards consideration amount to the O.P. No. 1.  The Complainant has further stated that he also paid the second year insurance premium of Rs.15,456/- in respect of the said car.  But the engine of the said car from the first day was not functioning properly and as a result, it faced breakdown on seven occasions within a period from 04.04.2011 to 26.08.2012.  The Complainant immediately reported it to the Appellant – O.P. and the Appellant O.P. rendered thrice free services to him and the fourth free service had not been availed by the Complainant since the said vehicle had not been road worthy at the scheduled time.  To redress the dispute  the Complainant approached the Consumer Affairs Department but on the scheduled date of meeting the O.Ps remained absent.  Hence, the Complainant filed the complaint case before the Ld. District Forum praying for investigating into the matter and then for passing order directing the Lexus Motors Limited at 209, A. J. Bose Road, Kolkata – 700 017 to refund all amounts such as bank processing charges, bank loan amount for which he has been paying till date, registration charges for auto fees, logistic charges, car insurance charges for the year 2010 – 2011, 2011 – 2102, 2012 – 2013, fancy number charges, extended warranty charges, pollution certificate charges, leather seat covers, car wheels, car cover, seakers charges and as per all debit note of Lexus Motors Ltd. with all interest and a compensation to the tune of Rs.4,00,000/- for suffering mentally and financially. 

The O.P. Nos. 1 & 2 filed W. V. denying and disputing all material allegations stating, inter alia, that the Complainant alleged the inherent manufacturing defect which is nothing but a concocted story and the fact remained that the said vehicle met with an accident and thereafter the problem of the engine occurred. The O.P. No. 2 has further stated that the Complainant received the delivery of the said car after being satisfied with the same so he is stopped for raising any issue regarding manufacturing defect of the said car.

The O.P. Nos. 3 & 4 i.e. the manufacturer, filed a separate Written Version stating that on 02.08.2012 the vehicle in question met with an accident and got damaged for which the door was repaired and the painting work was carried out.  The O.P. Nos. 3 & 4 specifically stated that the car developed the problem in its engine due to mishandling of the same for which the O.Ps are in no way responsible.  Accordingly, they prayed for dismissal of the petition of complaint.

In course of hearing of the appeal Ld. Advocate for the Appellants – dealer has submitted that during warranty period the defect was removed.  But the Ld. District Forum passed the impugned order without considering the same and without considering the fact that no expert evidence has been obtained in support of the alleged inherent defect of the said car.

Ld. Advocate for the Tata Motors Ltd. has submitted that as per condition of the warranty the servicing in respect of the vehicle in question had been done but the clause of the warranty does not cover the accident.  It is contended that since the car met with an accident the manufacturer or the dealer cannot be held responsible for that.  Ld. Advocate for the Tata Motors Ltd. has referred satisfaction note duly signed by the Complainant dated 16.07.2012 and 17.07.2012 and also referred to the service history.

Respondent – Complainant, in person has submitted that the engineers were the expert and the engineers noted that the engine was not in order and,  therefore, it could be presumed that it was an expert report to the effect that the machine was defective.  The Respondent No. 1 has further stated that the alleged incident of accident is false since no police record is there.  The Respondent No. 1 further mentioned that the car was taken by one Dipankar Das, a man of the dealer and on 20.10.2010 the car was returned thereafter on 26.03.2011 the second service was done and on 04.04.2011 the car again went to their service centre and all these events indicated that the car had the inherent defect.

Having heard submissions made by the Ld. Advocate for the Appellants and the Respondent in person and on perusal of record it appears that the Respondent – Complainant has purchased the vehicle manufactured by Tata Motors through its authorized dealer – Lexus Motor by paying Rs.7,09,013/- and the vehicle was delivered on 31.08.2010.  Subsequently, on 04.04.2011 the said vehicle developed problem for the first time and the same was attended by the servicing dealer who wrote “starting problem” for particulars of repair.  Thereafter, within a period of four months and twenty-two days the said vehicle developed defects on six occasions.  Ld. Advocate for the Appellant/Manufacturer has submitted that it will be evident from the “Satisfaction Notes” dated 16.07.2012 and 17.07.2012 that the vehicle was repaired properly.  But on perusal of those Satisfaction Notes it appears that the Respondent – Complainant did not put his signature therein which implied that the note was issued unilaterally which the Respondent – Complainant did not approve.  The Appellants alleged that the vehicle met with an accident but no authentic document has been brought forward to that effect. 

The Respondent – Complainant alleged that the vehicle has got the inherent manufacturing defect but no authentic documents like expert opinion has been filed to that effect.  In course of hearing of the appeals the Respondent – Complainant has submitted that the service engineers are expert and their opinion should be taken into account as expert opinion.  But no such report is found where the service engineers opined that there is manufacturing defect in the said vehicle. 

However, it appears from the record that the Respondent – Complainant has enjoyed the said vehicle for almost one year and the said vehicle is till remains in his custody. 

In view of that, we are of opinion that the Ld. District Forum was not justified in passing the order for refund of entire selling price by the manufacturer.  Evidently, the Complainant/Respondent took the vehicle to the dealer for removal of defects on several occasions.  But at the same time the alleged manufacturing defect has not been proved by expert evidence.  In view of the harassment suffered by the Complainant, we are of the considered view that it would meet the ends of justice if the sum of Rs.2,00,000/- (Rupees two lakhs only) and litigation cost of Rs.10,000/- (Rupees ten thousand only) are awarded in favour of the Complainant.  We, therefore, modifying the impugned judgment as hereunder:-

“The O.Ps of the complaint are jointly and severally directed to pay compensation of Rs.2,00,000/- (Rupees two lakhs only) and litigation cost of Rs.10,000/- (Rupees ten thousand only) to the Complainant within 45 days from this date, failing which interest @ 9% per annum shall accrue on the said amount from the date of default till realization.  The other directions of the Ld. District Forum are set aside.  The impugned judgment stands modified accordingly”.