STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                          (1)

Hind Motors India Ltd., Industrial Area, Phase I, U.T., Chandigarh through its Authorized Representative Sh. Gurdeep Singh (Law Officer).

…Appellant/OP-2

V E R S U S

Surinder Singh son of Sh.Mukand Singh, Aged 61 years, Resident of SBI Building, Taruwala, Paonta Sahib, District Sirmour, Himachal Pradesh Presently residing at House No.3120, Phase-VII, Mohali.

              ....Respondent/Complainant

Tata Motors Pvt. Ltd., SCO No.170-172, Sector 17-C, Chandigarh.

… Proforma Respondent/OP-1

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. Ranjan Lohan, Adv. for the appellant

                   Sh. Sandeep Bhardwaj, Adv. for respondent No.1

                   Sh. P.K. Kukreja, Adv. for respondent No.2 (proforma respondent)

                                      (2)    

Tata Motors Ltd., through its Sr. Manager Legal i.e. Mr. MS Pradeep, SCO No.170-172, Sector 17-C, Chandigarh.

…Appellant/OP-1

V E R S U S

1.           Surinder Singh son of Sh.Mukand Singh, Aged about 61 years, Resident of SBI Building, Taruwala, Paonata Sahib, District Sirmour, Himachal Pradesh.

              ....Respondent No.1/Complainant

2.           Hind Motors India Ltd., wrongly mentioned in complaint as Hind Motors, Plot No.9 & 15, Industrial Area, phase I, Chandigarh

… Respondent No.2/OP-2

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. P.K. Kukreja, Adv. for the appellant

                   Sh. Sandeep Bhardwaj, Adv. for respondent No.1

                   Sh. Ranjan Lohan, Adv. for respondent No.2

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    The above referred two appeals have been filed by the OPs/appellants against the order dated 5.5.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent No.1 and directed the OPs as under :-

          “The OPs shall jointly & severally pay the following amounts to the complainant:-

I)             Rs.8.00 lacs to the complainant as the depreciated value of the car in question purchased by him from the OPs as the vehicle in question has been completely damaged and is beyond repair and the same had suffered total loss in the process.

II)           Rs.7000/- to the complainant towards cost of litigation.

III)         On receipt of Rs.8,07,000/- from the OPs, the complainant shall return the burnt salvage of the car on the “As is where is basis” to the OPs.

                                      The aforesaid order be complied with by the OPs, within a period of 30 days from the receipt of its certified copy, failing which the OPs shall, jointly and severally, pay the amount of Rs.8.00 lacs along with interest @18% per annum from the date of filing the present complaint i.e. 20.10.2009 till the date of realization besides paying Rs.7000/- as cost of litigation.  Accordingly, the complainant shall return the salvage of the burnt car to the OPs.”

2.                     The facts, in brief, are that the complainant purchased a Tata Safari Car bearing No.HP-17-A-4040 from OP No.2 in Feb., 2003 for Rs.11,15,000/- for his personal use. He got all services of said car done well in time, but despite that the car was giving problem and used to get hot after 15-20 minutes of its drive. The last service was got done from OP-2 in Feb., 2008.  On 1.7.2008 at about 7.30 P.M. he along with his family, while on way to  Sector 21, Chandigarh, noted that suddenly smoke started coming out from the bonnet area due to the short circuit of the wires.  He immediately came out of the car and disconnected the wires and went to call a mechanic from the nearby market, but by the time he reached back, the smoke turned into flames and engulfed the whole safari vehicle.  The fire brigade tenders also reached the spot and tried their best but the vehicle was totally burnt regarding which DDR No.42, dated 1.7.2008 was recorded.  It was alleged that the vehicle caught fire due to the manufacturing defect in it as it was a very rare kind of incident.  Even the Surveyor, as approved by the Insurance Company Er. Harish C. Gupta, who examined the vehicle, said in his report that there was manufacturing defect due to which short circuit occurred and the vehicle caught fire. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed for compensation of Rs.8 lacs alongwith interest @ 12% per annum.

3.                     In their written statement Tata Motors Limited-OP-1, took several preliminary objections viz. that the complaint is not maintainable; that the vehicle in question was purchased in Feb., 2003 whereas the date of event of fire as alleged in the complaint is dated 1.7.2008 i.e. after 5 years 4 months, that the complainant is not consumer etc.  On merits, it was submitted that the complainant was using the vehicle in question as a commercial vehicle.  It was submitted that the event had occurred after a period of more than 5 years and 4 months of the purchase and the car sold by the OPs served the complainant for so long, therefore, the question of any manufacturing defect in it does not arise.  The warranty for the vehicle was given only for 18 months from the date of its purchase whereas the alleged event occurred on 01.07.2008.  It was averred that the complainant did not make the Insurance Company as a necessary party as he had also filed the insurance claim with the Insurance Company. It was pleaded that the vehicle had performed very well and there was no manufacturing defect as alleged.  Denying rest of the allegations, prayer for dismissal of the complaint was made.

4.                     In its separate written reply, OP No.2 took almost similar pleas as were taken by OP No.1, and also prayed for dismissal of the complaint.

5.                     The parties led evidence in support of their contentions.

6.                     After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

7.                     Feeling aggrieved, the instant appeals have been filed by both the appellant/OPs.

8.                     We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

9.                     The contention of the ld. Counsel for the OPs appellants is that the car in question was under warranty for a period of 18 months w.e.f. February 2003, it is alleged to have caught fire on 1.7.2008 and, therefore, the present complaint is not maintainable against the OPs/appellants. The complainant in para 2 of his complaint has admitted that he purchased the car in February 2003.  He nowhere mentioned in his complaint about the warranty period and did not produce the warranty card in evidence alleging that the same has been burnt alongwith the car.  Definitely it is not his case if the car was under warranty on 1.7.2008 when it caught fire.  On the other hand, the contention of the OPs/appellants is that the car carried a warranty of only 18 months, which expired in the month of August 2004.  If the car caught fire on 1.7.2008, the complainant cannot claim any compensation with respect to such incident, alleging manufacturing defect, because it was beyond the period of warranty.  The claim of the complainant, if any, could lie against the insurance company but not against the OPs/appellants.  The contention of the appellants is that the complainant has already secured the insurance claim from the Insurance Company and, therefore, he cannot be rewarded twice for one cause. 

10.                  The ld. Counsel for the complainant has argued on the basis of case Bishamber Nath Sikka Vs. Tata Motors Ltd. & Anr.-IV (2008) CPJ 131, decided by the Hon’ble Delhi State Commission, that if a defect in the vehicle continues after warranty, which had erupted before warranty then an inference could be drawn and the vehicle could be declared as defective vehicle.  However, in the present case, there is no such evidence to suggest if the vehicle was having any manufacturing defect.  Further, it is not proved if the said manufacturing defect existed within the warranty period and was not removed by the OPs/appellants.  Had the manufacturing defect existed within the warranty period and was not removed by the OPs, then certainly the complainant could file the complaint within the next two years therefrom.  It is, however, not the case here.

11.                  No doubt the complainant has mentioned that the car was having a manufacturing defect due to which it caught fire but the expert evidence produced in this respect is of no help to him.  He obtained a motor survey report dated 8.8.2008 from Er. H.C. Gupta.  According to him, the cause of fire is as follows :-

“It seems that the fire started due to spark caused by the short circuit in the wires probably due to some manufacturing error.”

This report was obtained on the back of the OPs/appellants and no notice of the inspection of the vehicle was given to them.  Otherwise also, there is no mention as to the cause of the short circuit.  The words “it seems” and “probably due to some manufacturing defect” are very significant to prove that the surveyor himself was not certain about the cause of short circuit.  The Hon’ble Supreme Court of India in the case of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & Ors.– IV (2009) CPJ 27 (SC) held that mere assertion, without data/evidence, is no evidence even if it comes from the expert.  There is a mere assertion in the report of Er. H.C. Gupta but the same would not be enough to prove that the vehicle was suffering from some manufacturing defect.

12.                  During the pendency of the complaint, the vehicle was got examined from the Mechanical Engineering Department of the PEC University of Technology, Chandigarh. They submitted the report on 8.2.2011 and the operative part of the same is as follows:-

          “In (It ?) seems that the fire took place due to spark caused by the short circuit in the wires on the left side of the engine and engulfed the vehicle interiors.  The exact cause for short circuit cannot be ascertained by physically inspecting the vehicle and that too after two and half years of the incident.”

In this report also, the exact cause for short circuit could not be ascertained.  It, therefore, cannot be said if the car was suffering from some manufacturing defect.

13.                  Otherwise also, the vehicle was being used by the complainant since February 2003 to July 2008.  During this period of more than five years, he never complained if there was some manufacturing defect.  No evidence was produced by the complainant to prove that he had been getting the periodical services conducted and if so from where.  If the car was being plied for a period of more than five years, it cannot be said that the same was suffering from any manufacturing defect.

14.                  In the absence of evidence to prove the manufacturing defect, the complainant cannot succeed in this complaint.  Needless to mention that the onus to prove manufacturing defects was on the complainant as held in the cases of Sundeep Polymers Pvt. Ltd. Etc. Vs. M/s Mercedes Benz India Ltd.-III (2009) CPJ 389 (NC) and Classic Automobiles Vs. Lila Nand Mishra etc.-I (2010) CPJ 235 (NC). The warranty period of 18 months, as contended by the OPs/appellants, has since expired in August 2004. The present complaint was filed on 20.10.2009.  No application was moved by the complainant/respondent for condonation of delay in filing the compliant.  The complaint which is barred by time cannot be entertained.  It may be mentioned that for a complaint regarding manufacturing defect the limitation should start within the period of warranty and not from the date when the occurrence took place after the expiry of warranty period.  The complaint is, therefore, barred by time.

15.                  In view of the above discussion, we are of the opinion that the ld. District Forum fell in error in allowing the compliant which was bound to be dismissed. The impugned order, therefore, cannot succeed.  We accordingly accept both the appeals and set aside the impugned order. The complaint is accordingly dismissed.  Parties are left to bear their own costs.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

12^th January, 2012

[JUSTICE SHAM SUNDER]

PRESIDENT

[NEENA SANDHU]

MEMBER

[JAGROOP SINGH MAHAL]

MEMBER