MRS. NEENA SANDHU, PRESIDING MEMBER

1.       This is an appeal filed by the complainant against order dated 29.7.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1333 of 2010.

2.       Briefly stated, the facts of the case are, that the complainant purchased a Tata Safari vehicle on 26.7.2007 vide invoice No. SAF/05219 from OP No.3 manufactured by OP No.1. The said vehicle was got registered vide registration No. CH-04-A-7087. It was stated that at the time of its purchase, the same was carrying guarantee for a period of 18 months. The said vehicle started giving trouble from the very beginning, as the engine could not accelerate and remained idle even after starting the same, so the vehicle was taken to OP No.3 i.e. Hind Motors but they were unable to rectify the problem. When the complainant found that the OP No.3 was not able to diagnose and rectify the problem then the complainant took the vehicle to OP No.2 and the Service Engineer of OP No.2 namely Balwinder checked the vehicle and suggested that there was some problem in crank shaft gear. They also got the vehicle checked from Lucas in Manimajra and after checking, it was confirmed that there was some problem in crank shaft gear and after that OP No.2 changed the crank shaft gear, free of cost as the vehicle was under warranty at that time. Even after the change of crank shaft, the same problem with the vehicle continued and complainant again took the vehicle to OP No.2 on 19.12.2008, who again changed the crank shaft gear. The service engineer suggested that there might be some fault in a part known as ECU. After getting the same checked up, the OP No.2 also changed the ECU free of cost on 19.12.2008 and at that time, the vehicle had run 34821 Kms. It was submitted that when the ECU was changed and told by the service engineer that ECU bears warranty upto 50000 Kms and the cost of the ECU was Rs.20,796.45 paise. It was further submitted that the vehicle ran well for about six months but thereafter it again gave problem when complainant was on his way to Faridabad. When the complainant crossed Delhi, Air Conditioner of the vehicle stopped working and the car started hearting up. The complainant took the vehicle to Tayal Motors at Faridabad, authorized service station of Tata Motors and after inspection, they told that fault was with ECU. They suggested the complainant to get the same checked and changed from OP No.2 only as it was till under warranty. In order to run the vehicle temporarily, the complainant got the radiator fan connected directly with the battery and thereafter the complainant came back to Chandigarh on 22.6.2009. The vehicle was sent to the workshop of OP No.2 on 23.6.2009 and the engineer of the OP No.2 confirmed that fault was in ECU and it needs replacement. However, they refused to change the ECU free of cost under warranty with the pretext that the warranty of the vehicle had expired after 18 months from the date of purchase. It was next submitted that this part was changed in December, 2008 only and at that time it was assured that the warranty of this part was upto 50000 Kms but they refused to change the same. After the ECU was changed on 19.12.2008 the vehicle had run approximately 14000 Kms as the meter of vehicle on 23.6.2009 was showing 48000 Kms. Thereafter on 25.6.2009 the complainant personally went to the workshop of OP No.2 and met Workshop Incharge and requested to change the part but they refused to do so free of cost. An e-mail in this respect was sent to the CEO of OP No.2 but to no effect. The complainant also sent legal notice through registered post but no response was received from the side of OP No.2. The above said act of OPs amounts to deficiency in service as well as unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the OP No.1 and admitted the sale of vehicle. It was denied that the vehicle was suffering from any manufacturing defect. It was admitted that the complainant took the vehicle to the workshop of OP No.2 for normal service and OP No.2 had not suggested that crank shaft gear was causing some problem. It was pleaded that LUCAS was not dealing with the part known as crank shaft and there was no question of getting alleged part checked from LUCAS. On 6.11.2008 after coverage of 32238 Kms the complainant reported the vehicle with a complaint of cold starting but there was no manufacturing defect in the vehicle rather the driving habits to ply the vehicle were required to be improved. However, the entire satisfaction of the complainant, the timing belt was replaced, fuel injection pump was replaced and assy. Cam shaft gear and drive gear were replaced under warranty free of costs basis. The vehicle was delivered to the complainant to his entire satisfaction. It was admitted that on 19.12.2008 after coverage of 34821 Kms, the vehicle was taken to the OP No.2 but there was neither any problem of cam/crank shaft nor the OP No.2 had replaced cam/crank shaft on 19.12.2008. It was denied that on 19.12.2008, the ECU was replaced by OP No.2. The invoice dated 19.12.2008 depicts that apart from minor services and normal maintenance, the OP No.2 loaded ECU with calibration + F Logic and the said job was carried out by OP No.2 under the warranty terms and no amount was charged from the complainant on this account. It was next pleaded that the warranty of the vehicle had already been expired on 25.1.2009 and hence, there was no question of any replacement of parts under warranty arises. The notice was allegedly not dispatched to the OP No.1 and OP No.1 had no knowledge about the said notice. The averments of the legal notice under reference were not correct.  It was next pleaded that the vehicle was not suffering from any of the manufacturing defects other the vehicle could not cover more around 55000 Kms in such a short period.  All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service as well as unfair trade practice on their part and prayed for dismissal of the complaint.

4.       Reply was filed by the OP No.2 and admitted the purchase of the vehicle from OP No.3 on 26.7.2007. It was pleaded that the vehicle in question did not have any defect, as alleged in the para of the complaint. It was admitted that that the vehicle came to the workshop of OP No.2 on 6.11.2008 and the vehicle was attended to most efficiently and effectively under the conditions of warranty. It was incorrect that there was any defect in the crank shaft gear and it was also incorrect that the service engineer of the answering OP had stated that warranty carries upto 50000 Kms as alleged in the complaint. It was pleaded that in the present case the warranty had expired after 18 months from the date of purchase and as per the conditions of warranty, the answering OP was not under obligation to attend the same under the conditions of warranty. It was further pleaded that the warranty documents were applicable both the seller and the purchaser and no one can escape liability under the terms of it. It was submitted that there was no defect in the vehicle in question and the answering OP had not committed any act, which amounts to deficiency in service and caused mental agony to the complainant. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service on their part and prayed for dismissal of the complaint.

5.       Reply was filed by OP No.3 and admitted the sale of the vehicle. It was pleaded that the complainant visited with the answering OP for the first free service on 21.9.2007, which was done. It was denied that there was any defect in the vehicle on that date. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service as well as unfair trade practice on their part and prayed for dismissal of the complaint.

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

7.       The learned District Forum dismissed the complaint as the complainant has not been able to prove his case to any extent against the OPs.

8.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant.  Sh.Sharad Aggarwal, Advocate has appeared on behalf of appellant along with appellant in person, Sh.P.K.Kukreja, Advocate has appeared on behalf of OP No.1, Sh.Rajesh Verma, Advocate has appeared on behalf of OP No.2 and Sh.Gagan Aggarwal, Advocate has appeared on behalf of OP No.3.

9.       In appeal, it is submitted that the learned District Forum has completely ignored the invoice dated 19.12.2008 exhibit C-7 produced by the complainant which clearly show that ECU was changed by the OP No.2 within warranty on the said date. A perusal of the said invoice would show that part detailed as ECU with calibration + F Logic worth Rs.20,796.45 paise was changed on 19.12.2008 under warranty. Perusal of the said copies would show that all other works got done on said date were paid and OP No.2 had charged for the other works. As per the case of the OP that the vehicle had met with an accident after covering a distance of 33681 Kms just before 19.12.2008 and therefore, the warranty had terminated. Had the warranty expired due to the accident as held by the learned District Forum, the OPs would not have changed the ECU on 19.12.2008 under warranty as is clear from the invoice Exhibit C-7. The learned District Forum has also erred while observing that appellant has concealed the material fact of the accident. Even otherwise, the manual does not anywhere show that the warranty would expire, if the vehicle meets the accidents. Since the ECU was not replaced as a result of accident which fact is clear from the invoice dated 19.12.2008 as the same was changed under warranty. The factum of accident was not material at all for the purpose of deciding the present complaint. It is submitted that before filing the complaint, the complainant had sent an e-mail to CEO of OP No.2 on 25.6.2009 and legal notice was also sent to OP No.2 by registered AD vide receipt dated 15.7.2009 but the OP No.2 had neither replied to the e-mail nor the legal notice. Before the learned District Forum, the OP No.2 cannot be allowed to say that facts as mentioned in the e-mail, legal notice and the complaint are not correct specially when e-mail and legal notice went un-replied. The learned District Forum has also committed a grave while holding that entire ECU was not replaced and the same was only replaced and loaded with calibration + F Logic. It appears that the learned District Forum has not produced the invoice dated 19.12.2008 before recording the above said findings. A perusal of the invoice clearly shows that the above said part was changed under warranty and therefore not even a single paise had been charged for the same. ECU loaded with calibration + F Logic is detail of the part which was changed. The learned District Forum has also failed to take into consideration various other invoice produced by the complainant with his affidavit Exhibits C-1 to C-4 and C-6. A perusal of the exhibits clearly shows that from the very beginning the vehicle was causing the problem. The learned District Forum has completely over-looked the pleadings of the appellant and also the affidavit. The learned District Forum has also wrongly held that since the complainant had not attached any proof or laboratory report or any other expert opinion, it cannot be held that vehicle is suffering from any defect. It is submitted that in para No. 6,7 and 8 the complainant had fully detailed the being faced and about his visit to the workshop of OP No.2 where the engineer of OP No.2 states that the fault was with the ECU and the same needs replacement. The said fact has not been denied by OP No.2 in his written statement. Even sending the e-mail to CEO of the OP No.2 and the legal notice have not been denied. The learned District Forum has wrongly held that if the vehicle was suffering from inherent manufacturing defect how it could run for more than 60000 Kms. The learned District Forum has not gone through the complaint as well as affidavit of the complainant in which it has been explained as to how the complainant is running the vehicle and has been taking the same to OPs again and again. It is submitted that since 3.6.2009 the complainant has been running the vehicle by connecting its radiator fan directly with the battery as due to fault of ECU  if the air conditioner is on the radiator fan is not working. The learned District Forum has wrongly relied upon judgment of Hon’ble National Commission in R.P. No.1163 of 2005 titled as Tara Motors Ltd. Vs. Khushal Singh etc. Hence, it is prayed the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

10.       It is argued by the learned counsel for respondent/OP No.1 and admitted the sale of the vehicle and admitted that the complainant took the vehicle to the workshop of OP No.2 for service and OP No.2 never suggested that crank shaft gear was causing some problem. It is argued that the LUCAS was not dealing with the part known as crank shaft and there was no question of getting alleged part checked from LUCAS. It is submitted that for the entire satisfaction of the complainant, the timing belt was replaced, fuel injection pump was replaced and assy. Cam shaft gear and drive gear were replaced under warranty free of costs basis and vehicle was delivered to the complainant to his entire satisfaction and denied that OP No.2 replaced the crank shaft on 19.12.2008 and also denied that on 19.12.2008 the ECU was replaced by OP No.2. It is submitted that the warranty of the vehicle had already been expired on 25.1.2009 and hence, there was no question of any replacement of parts under warranty arises.  It is next submitted that the vehicle was not suffering from any of the manufacturing defects and pleaded that there was no deficiency in service as well as unfair trade practice on their part and prayed for dismissal of the appeal.

11.     It is argued by the learned counsel for respondent/OP No.2 and also admitted the purchase of the vehicle from OP No.3 on 26.7.2007 and also admitted that that the vehicle came to the workshop of OP No.2 on 6.11.2008. The OP No.2 attended the vehicle most efficiently and effectively under the conditions of warranty. It is next submitted that there was no defect in the crank shaft gear and the service engineer of OP No.2 had not stated that warranty carries upto 50000 Kms as alleged in the complaint and in the present case, the warranty had expired after 18 months from the date of purchase and as per the conditions of warranty. The OP No.2 was not under obligation to attend the same under the conditions of warranty. There was no defect in the vehicle in question and the answering OP had not committed any act, which amounts to deficiency in service and caused mental agony to the complainant. Hence, it is prayed that the appeal filed by the complainant may kindly be dismissed.

12.     It is argued by the learned counsel for respondent/OP No.3 that the complainant visited with OP No.3 for the first free service on 21.9.2007, which was done. After the completion of the work, the complainant signed the job card and he was fully satisfied with the vehicle. It is submitted that there is no allegation against OP No.3, hence it is clear that there is no deficiency in service on the part of OP No.3 qua the complainant. Therefore, no case is made out against OP No.3. The complainant has not filed any documentary proof in support of his contention to show that the vehicle really has any defect. No expert evidence has been adduced by the complainant to establish any manufacturing defect in the vehicle. The complainant is not a consumer because the complainant has nowhere in the entire complaint stated that he has purchased the vehicle for his livelihood purposes. In the absence of above specific averment, it is deemed to be admitted that the complainant had purchased the vehicle for commercial and business interests. It is further submitted that there was no defect in the vehicle and pleaded that there was no deficiency in service as well as unfair trade practice on their part. Hence, it is prayed that the appeal filed by the complainant may kindly be dismissed.

13.     After going through the facts of the case and hearing the arguments put forth by the learned counsel for the parties, the main issues for consideration before us are

i)                   Whether there is manufacturing defect in the above said vehicle.

ii)                 Whether on 23.6.2009 the OP No.2  has rightly refused to replace the ECU free of cost.

14.     The perusal of the documents placed by the complainant along with the complaint in support of his contention that the vehicle is suffering from an inherent manufacturing defect right from the date of its purchase do not show that there is any manufacturing defect. All these documents shows that the complainant was going to the OP No.2 for the regular/normal service for daily wear and tear due to the usage of the vehicle. Rather the complainant has failed to prove any documentary proof in support of its contention that the vehicle has any manufacturing defect. No expert evidence has been adduced by the complainant to establish any manufacturing defect in the vehicle. Hence, in the absence of any document/opinion regarding the manufacturing defect from any expert, the contention of the complainant cannot be believed that there is manufacturing defect in the above said vehicle particularly when the vehicle till the filing of the complaint had already plied for 6000 Kms. In our opinion, the allegations made by the complainant regarding manufacturing defect in the vehicle are baseless and the learned District Forum has rightly observed this fact. Therefore, the appeal filed by the complainant for replacement of the above said vehicle is liable to be dismissed.   

15.          Secondly, on 23.6.2009 the service engineer of OP No.2 has rightly refused to replace the ECU free of cost as the warranty of the said vehicle has already been expired on 25.1.2009.

16.     It is an admitted fact that the complainant bought this above said vehicle  on 26.7.2007 and as per Annexure R-5, the warranty of the said vehicle was for 18 months, which ends in the month of January, 2009. Admittedly the complainant took his vehicle for the replacement of ECU to the OP No.2 on 23.6.2009 and the workshop Incharge refused to replace the same free of cost as the warranty of the vehicle expired in the month of January, 2009. As per the contention of the complainant that on 19.12.2008 when the ECU was replaced free of cost as the vehicle was under warranty at that time the service engineer of the OP No.2 has given assurance that ECU bears warranty upto 50000 Kms. In rebuttal, the OP No.2 has categorically stated that no such assurance to this effect was given by the service engineer of OP No.2 and there is nothing on file to prove this contention of the complainant. Hence the contention of the complainant that as per the assurance given by the service engineer of OP No.2, the above said vehicle is still in the warranty period as it has not covered 50000 Kms uptill now is not tenable.  Moreover the complainant himself has stated in complaint that this vehicle carries a guarantee/warranty for a period of 18 months from the time of its purchase. As per condition No.1 of the terms and conditions of the warranty Annexure R-4  “this warranty shall be for 18 months from the date of the sale of the vehicle, irrespective of the distance covered.” It has already been proved that the warranty of said vehicle expired on 25.1.2009 as the vehicle on 23.6.2009 more than 18 months old. The complainant took his vehicle to the service station of OP No.2 on 23.6.2009 for replacement of the ECU exactly after almost 6 months from the date earlier when the OP No.2 has removed/rectified the ECU on 19.12.2008. It is pertinent to mention here that there is nothing on file from which it can be concluded that on 19.12.2008 when ECU was removed/rectified then the OP No.2 has given any extended warranty for this part to the complainant. So, in the absence of any warranty given by the OPs particularly for the ECU, the OP No.2 was not under any obligation to replace the defective ECU free of cost on 23.6.2009. Hence, there is no deficiency in service on the part of OP No.2 and the appeal filed by the complainant is liable to be dismissed qua the respondent/OP No.2.

          In our opinion, as there is no manufacturing defect in the above said vehicle. Hence, the appeal filed by the complainant against OP No.1 is liable to be dismissed.

          Even the appeal filed against respondent/OP No.3 is also liable to be dismissed as there is no allegation against respondent/OP No.3 in the complaint filed by the complainant. 

17.     With the foregoing discussion, we have come to the conclusion that there is no deficiency in service on the part of all the OPs qua the complainant. Therefore, we dismiss the appeal filed by the complainant as devoid of merit. The parties are left to bear their own costs.

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

Pronounced.                                                                                      

16^th February, 2011.