For Complainant : Adv. Shri. Milind Joshi
For Opponent : Adv. Shri. Bhardwaj
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
[1] Initially the present complaint was filed before the Pune District Consumer Disputes Redressal Forum bearing Complaint No. : PDF/314/2001. After the order passed by the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai, this matter was transferred from Pune District Consumer Disputes Redressal Forum to Additional Pune District Consumer Disputes Redressal Forum bearing Complaint No. : APDF/511/05.
[2] After transferred the present matter before this Forum, this Forum issued notice to the Complainant R/on 13/5/2010. In pursuance of notice, the Complainant appeared before this Forum and thereafter this Forum passed order for issuance of notice to the Opponent R/on 21/6/2010. On 23/8/2010, the Opponent No.1 remained present before the Forum.
[3] The facts giving rise to the complaint briefly stated are as follows :-
It is the case of the Complainant that on 27/1/1994, the Complainant purchased the Tata Estate Car, bearing registration No. MH -12 P-4636 for his personal use. The said car was purchased for total consideration of Rs.4,20,000/- from the dealer i.e. Opposite Party No.2. The Opposite Party No.1 is manufacturer of the said Car. The Complainant submits that he took the delivery of the said car on 29/1/1994 on payment of price. However within a few days from the date of delivery the said car started giving troubles. The A/C was not cooling. There was engine oil and coolent leakage, silencer was making noise, lights were not working properly, door-setting was not proper etc.. All these complaints were brought to the notice of the Opponent No.2 who were providing after sales service through Ashok Automotives Sales & Services Pvt. Ltd.. On 9/3/1994 the Complainant delivered the vehicle for servicing and rectifying abovesaid defects to the Opponent. At that time, the Complainant pay for items replace during the servicing. After taking the delivery of the vehicle within a few days, he found that the defects pointed out by him to the Opponent No.2 which were not at all rectified. Therefore the Opponent No.2 apologized to the Complainant for not attending all the complaints and assured to rectify all the defects during the course of second servicing. However the defects in the said vehicle continued even after second servicing and the complaints of the said car substantially increased. The Complainant sent letters to the Opponent No.2 dtd. 5/9/1994 and 23/1/1995 for rectifying defects. But to no avail. The said car has caused several problems on 2/7/1994, the brake pipe of the said car broke near Panvel. On 20/11/1994, while the Complainant was coming to Pune from Mahad, the brake down occurred on as many as three occasions due to air lock and the said car was required to tow to Pune and the Complainant had to incur the heavy expenses for the same. From 2/12/1994 to 23/12/1994 the said car could not be used due to clutch plate problem. On several occasions the said car has given starting problems despite pointing out the defects specifically from time to time. The Opponent have neglected and failed to rectify the defects. The Opponent No.2 subsequent to November 1995 even stopped taking down the complaints formally on work order sheet. On several times the Complainant sent his vehicle to the Opponent for rectifying defects and several letters given to the Opponent No.2 in writing. On 29/7/1999, the Complainant wrote a letter to the Opponent No.2 and warned of legal action for providing deficient services and thereafter the Complainant has filed his complaint for seeking the relief which are as follows :-
Particulars of Claim :
(a) Rs.4,20,000/- towards the refund of price of the said car.
(b)Rs. 50,000/- by way of damages, mental torture and
harassment, suffered due to said vehicle.
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Rs.4,70,000/- Total claim.
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It is further contended by the Complainant that the cause of action lastly arose around 29/7/1999 when the Complainant requested the Opponent No.2 to rectify the defects or in the alternative, replace the vehicle and although the Opponent No.2 provided services and attempted to carry out repairs, their efforts were found futile.
On all these grounds and as specifically stated in the complaint application, the Complainant has prayed as follows :-
(a) The Hon’ble Forum be pleased to direct the Opposite Parties to pay Rs.4,70,000/- to the Complainant, by way of refund of the price of said car and towards the losses and mental harassment suffered by the Complainant.
(b)Costs of the proceedings may please be awarded in favour of the Complainant etc..
The Complainant has filed documents such as, Cash Memo of Opponent No.2 dtd. 10/3/1994, 28/4/1994, 8/7/1994, 10/10/1994, 31/3/1995, 6/12/1995, 7/12/1995, works order of Ashok Automotive Sales & Services Private Limited dtd. 9/3/1994, 27/4/1994, 4/7/1994, 21/7/1994, 20/10/1994, 17/11/1994, 14/03/1995, 13/09/1995, 17/11/1995, cash memo of Ashok Automotive Sales & Services Pvt.Ltd. dtd. 6/12/1995, letter dtd.5/9/1994, 23/1/1995 issued by the Complainant to the Manager, Telco, Bombay regarding unsatisfactory and problematic Tata Estate No. MH -12- P 4636 and rectification of technical defects in the said vehicle Tata Estate bearing No. MH -12- P 4636, letter issued by the Complainant to Mr. Bapat dtd. 14/11/1995. As also the Complainant has also filed affidavit in support of the contentions in the complaint application. On 21/6/2011, the Complainant filed some documents i.e. the technical inspection for the vehicle of Ramesh Talathi, Mahad issued by R.B. Nagane, Government Approved Insurance Surveyors & Valuers dtd.18/6/2011 alongwith photographs.
[4] The Opponent No.2 remained absent though duly served with the notice, therefore this Hon’ble Forum passed ex-parte orders as against it on 13/10/2010.
[5] (i) The Opponent No.1 appeared and filed its written statement and stated that the Opposite Party, Tata Motors Limited a company duly incorporated under the provisions of the Companies Act, 1913 and having its registered office at Bombay House, 24, Homi Mody Street, Mumbai – 400 001. It is the renowned manufacturer of various types of commercial vehicles (vehicles) and passenger cars (cars) . It is submitted that the cars and the vehicles manufactured by the answering Opposite Party pass through stringent quality checks and road trials before the actual commercial production starts and the cars and vehicles are marketed only after being approved by the Automotive Research Association of India. The cars and vehicles manufactured at the plant of this Opposite Party are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a principal to principal basis for sale of the cars and vehicles. The Opposite Party is ably supported by the excellent dealer ships/authorized service centres, like the 2nd Opposite Party, having excellent workshop setup for after sales servicing of the utility vehicles, which are manned by qualified and experienced personnel only. It is submitted that the customers of all utility vehicles manufactured by the answering Opposite Party are provides services through a large network of around 119 authorized dealers, 245 Tata Authorized Service Centers (TASC) 219 Tata Authorized Service Points (TASP) and 222 Tata Authorized Service Outlets (TASO) workshops. It is further submitted that every procedure for service/check-ups is standardized and procedures are laid down for the service centers, work shops etc. for carrying out necessary services /check ups / replacement as may be required. The manufacturers of the utility vehicles and the utility vehicles owners are bound by the terms and conditions of the warranty policy applicable for the vehicles. The Complainant has made misconceived and baseless allegations of manufacturing defect in the utility vehicle without relying on any expert report from a recognized and notified laboratory under Sec. 13 (1) of the Consumer Protection Act, 1986 and deficiency in service without any documentary evidence in support of the allegations made in the complaint. That the Hon’ble Forum has no jurisdiction to entertain, try and adjudicate the present complaint as the complaint is barred by limitation. It is admitted by the Opponent that the cause of action last arose on 29/7/1999 and the Complainant has raised the instant subject issues on or around May, 2010, i.e. after 11 years. As per the provisions of Consumer Protection Act, the cause of action arise on 29/7/1999 itself and not on May-2010. The Opponent has also raised the contention to the effect that the Complainant used the vehicle for commercial purpose. The Opponent stated that the Complainant has failed and neglected to follow the guidelines given in the owners manual, as recommended for smooth and maximum performance of the utility vehicle in question. As per the service schedule of the utility vehicle in question, the Complainant was supposed to bring the subject utility vehicle at the recommended intervals as mentioned in owners manual and service book for carrying out the mandatory free services. However the Complainant has not produced any record so as to show that the Complainant had regularly serviced the utility vehicle as per the recommended service schedule. The warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments. Our authorized dealers or services centers or service points in any way so as in our judgment which shall be final and binding to affect its reliability, nor shall it apply if in our opinion which shall be final and binding the vehicle is subjected to misuse negligence improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us or such services prescribed in our owners manual and service and service books are not carried out by the buyer through our sales or service establishment. All the utility vehicles manufactured in the plant of this Opposite Party are put through stringent control systems, quality checks and test drives by the quality assurance department before being cleared for dispatch to the market. The Complainant has filed this baseless complaint alleging manufacturing problem in the utility vehicle without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject vehicles suffered from the problems as alleged. The Opponent relied upon the judgment 2010 (I) CPJ page 19 National Commission in the case of Dr. K.Kumar Advisor (engineering) Maruti Udyog Ltd. V/s. Dr. A.S. Narayanana Rao & Anr. (I (2010) CPJ 19 (NC)) for the necessity of the expert evidence to prove the manufacturing defects in vehicle. The Complainant has purchased the utility vehicle on or around 27/1/1994 from the Opposite Party dealer and the said utility vehicle in question had covered several kms., within a period of 16 years. The said fact proves that the subject utility vehicle is in absolute roadworthy condition and that the jobs carried out on the vehicle in question are minor and running repairs, which were required to be carried out due to regular, continuous, extensive and faulty usage of the said vehicle. The Opposite Party has been prompt and swift to attend to the alleged grievances reported by the Complainant under the warranty as and when reported. Therefore the prayers as made by the Complainant for refund of the price of the said vehicle are untenable and unsustainable. In the case of Maruti Udyog Ltd. V/s. Susheel Kumar Gabgoura & Anr. case (JT 2006 (4) SC 113) the Hon’ble Supreme Court held that the manufacturer cannot be ordered to replace the car or refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty. However the subject vehicle is outside the warranty as of now and any repairs/replacement can be undertaken on paid basis only. In view thereof the Complainant seeking full payment of the vehicle is contrary to law and is untenable. The Hon’ble Suprme Court in the case of Bharti Knitting Company v/s. DHL Worldwide Express Courier (1996) 4 SCC 704, whereby it was held that when the Complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances in which he has signed the contract. The same would be evident from terms and conditions of the warranty which states as : “the buyer shall have no other right except those set out above and have particular, no right to repudiate the sale, or any agreement or to claim any reduction on the purchase price of the car or to demand any damages or compensation for losses, incidental or indirect, or inconvenience or consequential damages, loss of car, or loss of time, or otherwise, incurred or accrued. Hence the Complainant is debarred from claiming any compensation or damages from the Opposite Party.
(ii) The subject vehicle reported first time on or around 9/3/1994 at 3734 kms.(approx) for 1st free servicing besides the purported complaints of air condition not cooling engine oil and coolant leakage, silencer noisy, door rattling and lights not working properly wherein scheduled service & standard checks were done and the purported complaints were addressed satisfactorily by replacing the condenser, engine oil and oil filter, checking all lights, fitting all door rubber beading, heater light trimming etc. under the warranty. Further consumables like bulbs and fuse were changed on paid basis by charging Rs.71/- by the Complainant. Thereafter the vehicle in question reported on or around 27/4/1994 at 8,272 kms (approx) for 2nd free servicing alongwith the asserted problems of oil leakage, power window switch depressed, air condition not working, silencer vibrations, horn not blowing and inner tyre wear when it was duly attended by replacing oil filter, checking central lock, setting all doors, checking total light, checking and adjusting front wheel alignment and miscellaneous jobs under the warranty. Also, as a part of normal maintenance services fuel filter, fuel filter ring and gasket were changed on paid basis for Rs.136/-. It is stated that vehicle in question reported on or around 04/07/1994 at 12,409 kms (approx) for 3rd free servicing apart from the alleged grievance of air conditioner not working headlights not working one horn not blowing, driver side door not locking and noisy, rear wheels gets jam when brakes are applied, front tyre wear etc. and the same was set right by checking for fuses, replacing bulbs, checking all window winding switches and rubber beadings, setting all doors, checking brake pipe leakage, and all electrical systems and fuses and performing miscellaneous jobs under the warranty. The Complainant was charged Rs.408/- towards change of consumables like oil filter, glow plug and hex nut. It may be clarified that the Complainant was by mistake charged Rs.205/- for the bulbs but the same was adjusted in the bill of next service. Afterwards, the said vehicle reported on or around 21/9/1994 at 16,250 kms (approx) for 4rth free servicing with the alleged complaints of air condition bulb not working, digital clock not working properly, doors and dickey noisy, brake grabbing, diesel meter and speedometer not working properly, hold in roof, vehicle wobbling and poor pick up when on inspection it was found that the Complainant has operated / kept the said vehicle in heavy rains under water which in turn has jammed all doors and contributed to alleged problems in the vehicle. It is cleared that the subject act/ omission was an operational fault on part of the Complainant, which attracts cessation or warranty. However the Opposite Party as gesture of goodwill, have attended the alleged problems checking all gears, setting the doors, checking oil leakage, suspension and all rubber beadings, setting hand brake, replacing oil filter, assy, door safety lamp, low tone horn kit wheel cylinder, assy, accelerator cable, roof living, kit, weather strip, rubber flanger silencer and texa bond and other several works under the warranty. The vehicle then reported for a minor issue of air leakage on or around 20/10/1994 at 17,002 kms.(approx) which was duly removed under the warranty. Later the said vehicle reported on or around 17/11/1994 at 17468 kms approximately for the purported complaints of RHS front door noisy, RHS front door pop up, door loose, diesel gauge not working properly, air ventilator use, cabin light not working properly, speedo cable vibrates, brake pedal goes in, poor pick up, horn and digital clock not working and oil leakage when it was repaired by checking and tightening inner linkages, adjusting door knobs, checking doors and other lights glow plug timer and front suspension, checking and adjusting front wheel alignment, replacing outer handle flap, whiper washer pipe and sunvaisors, performing miscellaneous jobs under the warranty. Subsequently, the said vehicle reported on or about 14/3/1995 at 20113 kms. approximately for the alleged problem of RHS front glass noisy, LHS rear door glass switch not working central locking noisy, clusters not working , all time air conditioner not working headlight high beem and rootlight not working, noise while turning, accelerator sticky, coolent leakage silencer noisy, starting trouble and engine overheating alongwith fifth free servicing and the same redressed by setting all doors common removing fuse, checking idler arm, checking reverse gear, replacing control unit, oil filter, flexible hose under the warranty and parts like halogen bulb, rubber flanger silencer gasket cylinder head cover velvet channel, assy, sealing mould door and rubber bush on paid basis. The vehicle of the Complainant further reported on or around 13/9/1995 at 27/1/1994 for the asserted complaints on doors, wiring, lights, front suspension, central lock, air condition, front windshield etc. when it was attended by replacing door beadings, door glass rubber inside and door flap fixing inside wiring loom properly, checking all lights, checking front suspension, wheel balance, front wheel alignment, fitting seat side covers, checking central locking from both sides, checking air condition airflow (three position) for leakage, sealing front windshield, fixing door stoppers, etc. Eventually, the said vehicle reported on or around 17/11/1995 at 27,036 kms (approx.) for the issues of steering wobbling, starting problem, engine overheating door problem rear wiper washer not working, under carriage noise, etc. and the same as made right by checking and adjusting front wheel alignment, replacing rubber, tube, assy tie rod and glow plug on paid basis and adjusting aligning and setting all 5 doors checking under carriage nuts & bolts, etc. under the warranty. Hence it is cleared that the said vehicle has reported for normal maintenance services and running repairs only when it has been attended to the satisfaction of the complaint. It is submitted that the observations recorded by the service advisor on the job cards and steps taken for resolution of the complaint, would clearly establish that whatever complaints and recommended services, which required to be attended for extensive usage and improper maintenance of the vehicle. Without prejudice to the above, it is further submitted that the complaint is making bold statement of manufacturing defects in the vehicle after using it for 16 years which proves his malafide intent.
(iii) The Opponent stated that Section 24-A ( i) of the Act clearly states for filing the complaint within two months from the date of cause of action. There cannot be any fresh cause of action from 29/7/1999 the date when the Complainant requested the Opponent No.2 to rectify the defects alternatively. Hence the complaint is barred by limitation.
[6] On perusal of the entire proceedings, pleadings, documentary evidence, written and oral arguments of Advocate for the Complainant and Advocate for the Opponent No.1, the following points arouse for our consideration.
Points Answers
1. Whether the complaint is filed within a
period of limitation as per Section 24-A(1)
of Consumer Protection Act, 1986 ? … No.
2. What order ? … As per final order.
REASONS :-
[7] (i) Point Nos.1 & 2 :- After perusal of the complaint application and documents filed by the Complainant it reveals that the Complainant took delivery of the vehicle on 29/1/1994 and thereafter time and again the Complainant sent his vehicle for servicing and for rectifying his complaints regarding the dispute vehicle. On record of the proceedings, the Complainant filed work order and cash memo of the Opponents No. 2. After perusal of the work order and cash memo, it reveals that the Complainant lastly sent his vehicle as per work order dtd. 17/11/1995 to the Opponent. It means that the cause of action arose lastly on 17/11/1995. As per the provisions of Section 24-A (1) of the Consumer Protection Act, 1986 it is required to file the complaint application within a period of two years from the date of cause of action arose. In this matter, the Complainant purchased the vehicle on 27/1/1994. After that the Complainant sent his vehicle for free servicing and rectifying complaints in the disputed vehicle to the Opponent from time to time. On perusal of the documentary evidence filed on record it reveals that lastly the Complainant sent his vehicle as per work order dtd. 17/11/1995. Therefore in our opinion the Complainant must have to file the present complaint from the date of purchase or from the date of sent his vehicle to the Opponent lastly. In our opinion the Complainant has to file the complaint from the date of last work order i.e. 17/11/1995. The Complainant filed postal receipt on 6/1/2012 to the effect that the Complainant sent a notice to the Opponent No.2 on 29/7/1999 and it is the contention of the Complainant that the cause of action arose on 29/7/1999. But after perusal of the only postal receipt it is not clear that the Complainant sent notice to the Opponent on 29/7/1999. Because the Complainant has not produced any notice dtd.29/7/1999 on record for perusal of Hon’ble Forum. In our opinion only sending notices, letters to the Opponent cannot extend the time limit as prescribed by law for filing the complaint. Relying on the judgment ~ 2011 (IV) CPJ 114 (NC) in the matter of Ramratan M. Shriwas V/s. Jayant H. Thakar has observed as under :-
“ Consumer Protection Act, 1986- Sections 2(1) (g), 21 (b), 24-A Flat Agreement – non honouring of commitments – Limitation – Forums dismissed complaint – Hence revision – Contention, continuous and long correspondence between parties and hence case of continuing cause of action – Not accepted – Once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties – Provision regarding limitation being of mandatory nature, Fora below was duty bound to determine whether complaint is within limitation period – Complaint barred by limitation.
“Position of law on the point is well settled. In fact, on and after accrual of cause of action, party cannot get the time of limitation enlarged by indulging in exchange of correspondence.
Since the delay is of 3 years in filing the complaint, which has not been sufficiently explained, the order of the District Forum dismissing the complaint is proper needing no inference”.
“Section 24-A of the Act, is peremptory in nature and requires the Consumer Forum to see it before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.”
As per the findings of the Hon’ble National Commission, the case ratio is squarely applicable to the present case and therefore the complaint is liable to be dismissed on the point of limitation itself. Hence we answer the point No. (1) in the negative.
(ii) The Complainant has not filed any delay condonation application supported with affidavit on the record for condoning the delay.
[8] With the aforesaid discussions we answer the points No. 1 & 2 accordingly. Hence in our opinion, the complaint is liable to be dismissed on the point of limitation.
Hence we pass the following order :-
// ORDER //
(i) The complaint stands dismissed.
(ii) No order as to costs.
iii) Certified copies of this order be supplied to
all the parties free of costs.
