PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding a defective car of the Complainant manufactured by the Opposite Party.
2) The Complainant in this case has stated that he had purchased a new Indica car model V-2 No.MH-01 DA-388 from the authorized dealer of the Opposite Party on 18/04/2002. The dealer is M/s.Wasan Motors Ltd. The car developed problems in gear & air conditioning system within 20 days of its purchase. The vehicle has to be taken to the various service stations of the Opposite Party for 4 times in first 5 months of its purchase for repairs. Within the 1st year of its purchase, the car was to be kept with the Opposite Party on different occasions for repairs for 51 days, still the defects in the car were not removed till today.
3) The Complainant further stated the above said car was having manufacturing defects. Therefore to pacify the Complainant Opposite Party extended the warranty for the said car for further 6 months i.e. upto March, 04. On one occasion, even after keeping the car at Opposite Party’s service station from 18/11/2002 to 18/12/2002 the defects were not rectified. The Complainant further averred that the car was sent for repairs for 12 times in one year, but the car was not completely repaired.
4) The Complainant stated that the car was again sent to the workshop of Opposite Party on 20/10/2003 and again on 09/01/2004 for repairs. All these incidents show that the Opposite Party had supplied a defective car to the Complainant.
5) Therefore, the Complainant has prayed for the replacement for the defective car or refund of the price of the card (Rs.2,01,000/-) with interest @ 18 p.a. from 11/04/2003 or rectification of the defects and warranty of two years, cost of the complaint and compensation for mental harassment, etc.
6) The Complaint was admitted and the Opposite Party was served with the notice. Opposite Party appeared through its advocate and filed its written statement wherein it was clarified that the present name of the Opposite Party is Tata Motors in place of Tata Engineering & Locomotive Company Ltd. or TELCO. Hence, hereafter we are referring the Opposite Party as Tata Motors.
7) The Opposite Party has explained in the written statement that the defects alleged by the Complainant are only day today maintenance due to normal wear and tear besides rough use of the car. However, the Complainant has alleged that the car is having manufacturing defects. The exhibits filed by Complainant and work attended do not show any manufacturing defect.
8) The Opposite Party further sated that the allegations of the Complainant are not supported by any laboratory report or expert opinion, as the onus of proving the allegations of manufacturing defects is on the Complainant. The provisions of Consumer Protection Act, require that the defects should be certified by an appropriate laboratory. This has not been done by the Complainant.
9) The Opposite Party denied that car is defective in anyway. It was clarified that the problems were of electrical accessories and the same were attended to and rectified. The Opposite Party also pointed out the provisions of warranty i.e. clause 4 and 6 wherein parts like, tyres, batteries, electrical equipments, maintenance services, like oil, fuel charges, wheel balancing, fuel filter, oil filters, u belts, hoses, gas leaks in A/c are not covered under the warranty.
10) The Opposite Party further stated that the Complainant failed to prove any manufacturing defect in the car from the exhibits attached by him to the complaint. However, the defects shown in the exhibits themselves show that it was due to normal wear and tear from day to day use and also due to rough use of the car.
11) The Opposite Party further sated that after using the car for one year and ten months the Complainant cannot call it a new car after using it for 4000 k.ms. The Opposite Party has admitted that the car was delivered on 18/04/2002 and the Complainant made the complaint regarding A/c blower problem on 18/05/2002. An A/c. blower is a electric part, still it was replaced. Then between 01/07/2002 to 29/07/2002 servicing & maintenance work was done which is not covered by the warranty. A/c. parts were replaced. Cleaning and refitting of rear brakes, tightening of temperature gauge was done. These are only normal wear & tear. This also indicates the rough use of the car. The brake liners had to be again cleaned. The exhaust system was found broken as it was hit from below.
12) The Opposite Party stated that the job cards and record show that the problems were either perceptions or due to rough handling and normal wear and tear. However, they were attended promptly and free of cost. The Complainant was also provided another service car on his demand in place of the car in question during complete checkup at in-house Tata Engineering Service Centre at Worli. On 18/01/2003 also the problems were again brake shoe cleaning, routine maintenance etc. On 06/02/2003, the car was inspected by the engineers of M/s.Fortune Cars and it was found satisfactory. The Opposite Party has stated that the Complainant’s allegations of manufacturing defect in his car were made for obtaining a new car from the Opposite Party after using this car for more than 1½ years. The Complainant does not want to pay for the routine maintenance which is due to wear & tear on account of use of this vehicle.
13) The Opposite Party further stated that the car was sent to Pune plant on 13/05/2003 at Complainant’s request for detail checkup and repairs if required. The problems found were again of minor nature, such as oiling the hinges, door locks. The car was found performing satisfactorily and most of the problems raised by the Complainant were not existing. The dented bonnet of the car which was due rough us, was also replaced as goodwill gesture. The exhibits dtd.20/10/2003 and 09/01/2004 show the normal routine maintenance jobs and not a manufacturing defect. Finally it is averred by the Opposite Party that the Complainant has not proved any manufacturing defect in the car from the exhibits/documents produced by the Complainant. Finally Opposite Party prayed that the complaint be dismissed with cost.
14) The Complainant has attached the Xerox copies of following documents to the complaint –
a) Delivery note dtd.18/04/02 issued by the dealer of the car–Wasan Motors Ltd.
b) Job card of the service station dtd.18/05/2002 – United Motors.
c) Job card of the service station dtd.01/07/2002 – Unitied Motors.
d) Job card dtd.29/07/2002 / 31/07/2002 – Unitied Motors.
e) Job card dtd.17/09/2002 – Kwik Auto Centre.
f) Job card dtd.20/09/2002 – Kwik Auto Centre.
g) Job card dtd.23/09/2002 – Tata Engineering.
h) Job card dtd.24/09/2002 – Tata Engineering.
i) Job card dtd.10/10/2002 – Kwik Auto Centre.
j) Job card dtd.08/02/2003 – Fortune Cars Pvt.Ltd. (Service Station)
k) Letter of Opposite Party to Complainant dtd.18/12/02 extending warranty period upto March, 2004.
l) Letter of Complainant to Opposite Party dtd.25/04/2003.
m) Notice by Complainant’s Advocate to Opposite Party dtd.2705/2003.
n) Statement of 11 visits to workshop.
o) Reply of Opposite Party to the notice of Complainant’s Advocate dtd.11/07/2003.
p) Invoice dtd.20/10/03 of Fortune Car regarding the (job card dtd.20/10/2003) repairs done in the workshop of Fortune Cars-Opposite Parties Authorized Service Centre.
q) Labour Invoice dtd.09/01/04–Job Card dtd.06/01/04 of Fortune Cars Pvt.Ltd.
15) The Complainant also filed additional affidavit in support of the complaint and produced the xerox copies of the following documents -
i) Statement of maintenance of the car.
ii) Schedule of the service of the car.
iii) Letter of Opposite Party to the Complainant dtd.18/12/2002.
iv) Letter of Complainant to the Opposite Party dtd.04/12/2002.
v) Letter of Complainant to the Opposite Party dtd.10/12/2002.
vi) Letter of Complainant to the Opposite Party dtd.27/12/2002.
vii) Letter of Complainant to the Opposite Party dtd.30/12/2002.
viii) Job card no.1087 dtd.28/05/2004 issued by Fortune Cars Pvt.Ltd. and its labour invoice & part invoice.
16) The Opposite Party alongwith its written statement attached the xerox copies of the following documents -
a) Relevant pages of owners’ manual & service book.
b) Statement of visits to workshops for repairs.
c) Fax letter sent by Complainant to Opposite Party dtd.05/12/02–car is perfect.
d) Letter of Opposite Party to Complainant dtd.18/12/2002.
e) Letter of Opposite Party to Complainant dtd.30/12/2002.
f) Job cards of service station dtd.18/12/2002.
17) The Complainant raised the following points in his additional affidavit.
a) Normally maintenance is required after 5000 K.m. running of the car but, in this case problems started at 613 k.ms.
running. Within one month, A/c blower was replaced. On 29/07/2002 compressor was replaced. Altimeter belt, brake
liners & silencer pipe, were replaced. It shows the car was defective form the purchase itself.
b)During the repairs not only the parts were serviced but they were also replaced. They were not replaced due to normal wear & tear but they were defective from the beginning.
c)There is no evidence to show that the car was used roughly.
d)Exhibit ‘H’ shows that the car is defective.
e)Within 5 months temperature gauge had been loosened. This shows poor workmanship.
f)The warranty clause 4 excluded tyres, batteries, electrical equipment, not manufactured by the Opposite Party but supplied by the other parties. This cannot be accepted as the Complainant has purchased the complete car from the Opposite Party. Therefore, all the components of the car must be covered under the warranty. Opposite Party can’t exclude some parts and give warranty for specific parts only.
g)The brake shoe was affected by washing and it required cleaning again & again. This shows that the brake shoe was defective and material used for this part was of inferior quality.
h)Complainant has not shown reluctance for taking delivery of the car, after repairs.
i)The Complainant has alleged that the brakes are weak and the car was pulling on left side which was dangerous condition from safety point of view.
j)Even after filing the complaint, on (09/01/04), the car had to be taken to workshop for repair on 28/05/2004 i.e. replacement of outer rear bearing, cleaning of brakes, replacement of bush, A/c condenser, fan, front bumper, silencer muffler, R/RF spherical joint kit etc.
18) The Complainant vehemently pointed out that all the points mentioned in the para 17 above are things speaking themselves that the car was defective and hence, the complaint be allowed.
19) The Complainant and Opposite Party filed their written arguments wherein they reiterated the facts mentioned in their complaint, rejoinder and written statement respectively.
20) We heard the Complainant. Both the parties had acquiesced that their written arguments would be treated as oral arguments. Therefore, we perused the written argument of both parties, complaint, additional rejoinder of the Complainant and the documents mentioned in para 14 to 15 above. We also went through the written statement of the Opposite Party and the documents submitted by it and our conclusions are as follows.
21) In this case the Complainant had alleged that the car was purchased on 18/04/2002 and it became defective i.e. the car was defective almost from the beginning (18/05/2002). It has manufacturing defects. On the other hand the Opposite Party has denied these allegations and contended that there was no manufacturing defect in the car. Whatever the defects were shown in the exhibits, they were of minor nature and they occur due to normal wear and tear and because of rough use by the Complainant. Whatever minor parts were found defective, they were replaced as a goodwill gesture. Even the parts like dented bonnets and broken silencer which were damaged by rough handling were also replaced. The Opposite Party vehemently asserted that some of the defects mentioned by the Complainant were even not existing. Under this situation it is necessary to examine the documents and particularly the job cards submitted by the Complainant as well as the Opposite Party.
22) a) Exhibit ‘B’ is the job card dtd.18/05/2002. As per this document
i) the A/c blower fan is not working
b) Exhibit ‘B1’ is dated 01/07/2002 – contains
i) Servicing
ii) A/c blower noisy – Blower Replaced.
iii) Fuel gauge not showing proper reading.
iv) Temperature gauge not working at times.
In the Opposite Party’s workshop following work was done on 01/07/2002 – “1st service is done after 1000 k.m. running, changed engine oil, tighten the temp gauge, the Blower was replaced. Fuel gauge checked and it was found O.K.”
Therefore, from these documents, dtd.18/05/02 and 01/07/02 i.e. upto 01/07/2002 only the A/c. Blower was found defective but it was replaced by the Opposite Party under warranty Fuel gauge was O.K. and temp gauge was tightened.
23) Exhibit ’B2’ page 12 dtd.31/07/2002 of the complaint shows the replacement of A/c compressor under warranty. Rear brakes removed, cleaned and refitted. And alternator belt was changed under warranty i.e. on 31/07/2002 an A/c Compressor and Alternator belt was replaced. Again the main defective part was A/c (Air conditioner).
24) Exhibit ‘B3’ to the complaint, page 13, does not show any specific defect as the hand written writing is blurred. It is not readable. However, Exhibit ‘B4’ job no.1092 dtd.20/09/02 shows the following description of the job –
i) Rust of ii) Polish paper iii) Coolant, patrol charges Engine line up, suspension checkup, brake service, General checkup, Silencer welding, A/c checking, interior cleaning.
25) Exhibit ‘B5’ Repair order dtd.23/09/002 –
i) Type of work – Rear brake service (Liner Clean).
ii) Hand brake adjusted.
iii) Hatch tray fitted with Beading.
iv) Both Rear liver replaced (Noisy) Liner brake shoe
v) 5 liter fuel filled.
Exhibit ‘B7’ – car receipt & delivery dtd.10/10/2002 – no defect is mentioned.
Exhibit ‘B8’ – dtd.08/02/2003 for 5000 k.m. free service Engine Inspection. Silencer – Ger Leak – Rectify.
26) Exhibit ‘G32’ – Invoice – dtd.20/10/2003 – job card 3489 -
a) Polish paper.
b) Filter element.
c) Engine Oil.
d) Cotter pin.
e) Oil filter.
27) Exhibit ‘G33’ – dtd.06/01/2004 – Job card 4916.
Labour invoice i) Rear bearing – replaced.
ii) Door Clip.
iii) Front Brake –cleaned.
iv) Outer bearing replace.
v) Gear liver play adjusted – bush.
vi) Coolant House Clip tightened.
28) Exhibit ‘L’ page Job card 1087 – dtd.28/05/04 –Labour invoice dtd.29/05/04
i) Silencer Leakage – Silencer welding
ii) Condenser fan not working & A/c air How
iii) Gear is hard.
iv) Clutch engine service.
Pre-silencer muffler R/RF spl. joint kit replaced.
Clutch setting done
Spark plug cleaned.
Gasket
Condenser fan, spherical joint kit.
29) From these above said job cards, invoices and labour invoices, there is no doubt to infer that the Air condition was defective from the beginning. However, the defective parts i.e. the blower and the compressor were replaced by the Opposite Party and the warranty period was extended upto March, 2004. Till that period the following were the defects found in the rest of the car.
30) On 01/07/02, as per the job sheet there was complaint of fuel gauge and temp. In this respect as per the job sheet also, the temp gauge was tightened and the fuel gauge was all right.
31) On 31/07/02 again the defective part was A/c.
On 20/09/02 the job sheet shows no major defect except a silencer welding and on 23/09/02 rear brake servicing was done and no defect is seen in the vehicle except rear liver replacement.
Exhibit 7 dtd.10/10/02 does not show any defect.
Exhibit 8 dtd.08/02/03 shows servicing after 1000 k.m. Engine inspection, silencer and gear leak. rectified. So there is again some problem in silencer and gear of the vehicle.
Exhibit ‘G32’ dtd.20/10/03 – job sheet shows only cotter pin & oil filter, filter element, polis paper, Engine oil.
Exhibit ‘G33’ dtd.06/01/04 shows i) rear bearing replacement– under warranty.
ii) Door clip replacement.
iii) Outer bearing replaced – under warranty.
iv) Gear liver adjusted and bush replaced.
On this day the bearings and bush were replaced and those were replaced under warranty. The complaint was filed on 09/01/04. From these above points it is sent that the A/c was defective from 18/05/02 till filing of the case. Silencer was welded. It has been brought to the notice of this Forum that this silencer is fitted at the bottom of the car and there is every likelihood that it can be hit by any external objects like stone or pothole or any hump, shoulder of the road or speed breaker and hence it cannot be said as the manufacturing defect and also it was welded by the Opposite Party under warranty. From the above job sheets, it is seen that there is some problems in the braking systems & gears also bearings and bush. However, all these problems were attended to and rectified so far as the main Engine, Chassis and body of the car is concerned there seems to be no problem.
32) From the above points it is seen that only the A/c is defective and the other problems regarding brakes, gears and bearings were attended to without any cost and under warranty. The other charges of petrol, engine oil has to be born by the Complainant.
33) It is also the allegation of the Complainant that during one year the car had to be sent for repairs for 12 times. However, the above job cards show only 6 occasions in which the regular servicing was done at 1000 k.m. and at 5000 k.m. i.e. for two times. Job card dtd.10/10/2002 shows no any defect or problem. 1st two job cards show mainly A/c problem confirming the A/c defect.
34) The other allegation of the Complainant is that the car was in garage for 51 days. Particularly at one time from 18/11/02 to 18/12/02 the vehicle was with Opposite Party continuously for 30 days. In this respect a fax of the Opposite Party dtd.06/12/02 addressed to the Complainant is relevant at annexure 3 to the written statement stating that “We confirm that the subject vehicle has been thoroughly inspected by us and is in perfect condition. We once again request you to have the same collected.” Inspite of this fax letter, the vehicle was not taken by the Complainant till 18/12/02. This certainly indicates that the Complainant was reluctant to take the vehicle.
35) The letter of the Complainant dtd.25/04/03 points out many defects in the vehicle including defects of Air conditioner, mechanical defects, electrical defects tyres and others but most of these defects are not reflected in the job cards produced by the Complainant e.g. Loud flapping noise, anti theft system discontinuation, central locking system, dash board electric system, circuit C D changers, rattling noise from engine, pickup of the car at the time of change in gear, leakage in water pump etc.
36) One of the allegations is “average is low” as engine is fast. In this connection the letter of the Opposite Party dtd.30/12/02 is relevant. From this letter it transpires that the Complainant had complained regarding tyre wobbling, engine stalling and low efficiency. Therefore, the Opposite Party had replied, “We had got your car examined through our dealership Fortune Cars, and we wish to state that the car did not have any problems as far as 1st two points are concerned. As far as third point is concerned, you disagreed to give us the car for fuel efficiency testing. We hope that, if the car is driven properly, you will continue to get satisfactory motoring from your car”. This clearly shows that the Complainant at one point complains for fuel efficiency but has not given the car for fuel efficiency testing.
37) The Complainant had used the car upto 09/01/04 i.e. one year and ten months and thereafter he has prayed for a new car or a price for the car alongwith interest @ 18 % p.a. to be given to him.
38) Taking into consideration the points mentioned above, we find that only the A/c was defective from the beginning and the defective parts have been replaced free of charge during the warranty.
39) Regarding other problems, the job cards show minor defects in the breaks, gears and bearings which were attended to and rectified. There is no problem in Engine or the chassis or the body of the vehicle. Therefore, the prayer for the replacement for new car or the whole price of the car after using it for one year and ten months is not proper. In view of the above observations, the complaint deserves to be dismissed. Therefore, we pass the following order –
O R D E R
i.Complaint No.18/2004 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
