BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint  Case No:1396 of 2009

Date  of  Institution :   20.10.2009

Date of   Decision   :   05.05.2011

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

Presently residing at House No.3120, Phase-VII, Mohali.

….…Complainant

                                       V E R S U S

1]       Tata Motor, SCO No.170-172, Sector 17-C, Chandigarh.

2]       Hind Motor, Indl. Area, Phase-I, U.T., Chandigarh.

          ..…Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

SH.ASHOK RAJ BHANDARI            MEMBER

Argued by:     Sh.Sandeep Bhardwaj, Adv. for the complainant along with Sh.Surinder Singh, complainant in person.

Sh.Vinay Guleria, Adv. proxy for Sh.Gagan Aggarwal, Adv. for the OPs.

PER ASHOK RAJ BHANDARI, MEMBER

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                The brief facts of the case are as under:-

                That the complainant has purchased a Tata Safari Car bearing No.HP-17-A-4040 for his personal use from OP No.2 in Feb., 2003 for Rs.11,15,000/-.  The complainant got all services of said car well in time from time to time, but inspite of that the car was giving problem from the very beginning.  It used to get hot after 15-20 minutes of its drive and the last service was got done by the complainant from OP-2 only in Feb., 2008.  It is averred that on 1.7.2008 at about 7.30 P.M. the complainant along with his family while on his way to  Sector 21,Chandigarh noted that suddenly smoke started coming out from the bonnet area due to the short circuit of the wires.  The complainant immediately came out of the car and disconnected the wires and went to call a mechanic from the nearby market, but by the time the complainant 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.  A DDR No.42, dated 1.7.2008 was recorded with the concerned police station.  It is further averred that the vehicle caught fire due to the manufacturing defect in it as it is a very rare kind of incident which generally never happens to a normal defect free vehicle when the vehicle is being run on routine day-to-day basis.  Even the Surveyor as approved by the Insurance Company Er.Harish C. Bansal, who examined the vehicle, said in his report that there is manufacturing defect due to which short circuit occurred and the vehicle caught fire.  It has been averred that the complainant has earlier filed a Complaint No.1298 of 2008 before this Forum, which was dismissed as withdrawn on 11.11.2008.   Alleging the above act of OPs as gross deficiency in service, the present complaint has been filed praying for compensation of Rs.8.00 lacs along with interest @12% p.a. for the loss occurred due to the negligence of OPs by selling a car to the complainant with a manufacturing defect in the same. 

2]             In the written statement filed by Tata Motors Limited-OP-1, several preliminary objections have been taken to the effect that the complaint is not maintainable as the complainant had not sought any liberty from this Forum to file afresh complaint while withdrawing the earlier one on 11.11.2008 and 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.  On merits, it is submitted that the complainant was using the vehicle in question as a commercial  vehicle for business purposes.  It is also submitted that the event has 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.  More so, the warranty for the vehicle was given only for 18 months from the date of its purchase but the alleged event occurred on 01.07.2008.  Thereafter, OP-1 has no responsibility on that count.  Further the complainant has not made the Insurance Company as a necessary party as the complainant has also filed the insurance claim with the Insurance Company. More so, the event could have happened because of some illegal & unauthorized additions in the vehicle like installing music systems, C.D. & L.C.D. from some unauthorized dealer.  The same thing applied to extra lights, extra horns, noise hooter, overloading and rough usage of vehicle etc.  Even in the DDR lodged by the complainant, there is no allegation about the manufacturing defect, which is nothing but an after thought on the part of complainant.  Another objection taken by the OP-1 is that the vehicle in question was being used for commercial purposes only and hence the complainant is not a consumer. The report of the Surveyor only says that short circuit in the wires was probably due to some manufacturing error.  The Surveyor has not disclosed that what was the manufacturing error in the wires, so the report is based on surmises and conjectures and without any foundation or substance.   Therefore, it did not inspire any confidence.  The vehicle had performed very well and there was no manufacturing defect as alleged.  Denying rest of the allegations, it is prayed that the complaint be dismissed with costs.

                In the written statement filed on behalf of OP No.2, same averments & assertions have been taken as has been taken by OP No.1, and it is prayed that the complaint be dismissed.

3]                 Parties led evidence in support of their contentions.

4]             We have heard the learned counsel for the parties and have perused the entire record.

5]             The basic facts of the case have already been enumerated in the foregoing paragraphs. 

6]             In brief, the case of the complainant against the OPs is that he had purchased a Tata Safari Car bearing No.HP-17-A-4040 for his personal use from OP-2 in Feb., 2003 for Rs.11,15,000/- and that the car has been giving one problem or the other right from the very beginning.  During the intervening period of about 5 years, the complainant has been getting the car serviced from the OPs only but it was getting hot after 15 to 20 minutes drive.  Finally on 1.7.2008 at about 7.30 P.M. when the complainant along with his family members was on his way to Sector 21, Chandigarh, he noted some sudden smoke coming out of the bonnet area due to short-circuit of the wires.  He immediately disconnected the electrical wires and tried to get a mechanic from the market but by the time he came back, the car was already on fire and it was totally burnt. Accordingly, he lodged DDR No.42, dated 1.7.2008.  The contention of the complainant against the OPs is that such kind of incidents are very rare and exceptional during normal car drives.  These only take place when there is manufacturing defect in the car and not otherwise.  In support of his case, the complainant obtained the services of one qualified and approved Engineer Harish C. Bansal, who was acting as Motor  Surveyor and who after examining the vehicle stated in his report that there is a manufacturing defect due to which short-circuit occurred and the vehicle caught fire.  It is also stated by the complainant that he had earlier filed a complaint No.1298 of 2008 before this Forum, which was dismissed as withdrawn on 11.11.2008.  Alleging these acts of the OPs as gross deficiency in service, the complainant has prayed for compensation of Rs.8.00 lacs along with interest due to the fact that the OPs had sold him a car with a manufacturing defect and that ultimately led to short circuiting of electric wires and then fire resulting in burning of the vehicle in toto and causing immense financial loss to him besides causing mental & physical harassment on account of sale of defective car to him by the OPs. 

7]             OP-1, who is the manufacturer of the car has taken preliminary objection saying that the present complaint is not maintainable as at the time of withdrawing the complaint earlier on 11.11.2008, the complainant had not sought any liberty from this Forum to file the complaint again.  There is already an authority on the point cited by the complainant of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad reported at III(1009) CPJ 427 titled Vora Towers Welfare Association Versus Janatha Industrial Foundry Works & Ors., where it has been held that:-

“(ii) Complaint – Withdrawal of – Contention, earlier complaint filed by complainant association withdrawn without any permission to file a fresh complaint – Contention rejected – Earlier complaint withdrawn with a view to file it afresh – Validity of filing a complaint that was withdrawn earlier upheld by Hon’ble Supreme Court in New India Association Co. v. R.Srinivasan, II (2000) SLT 520 = I (2001) CPJ 19 (SC) – Complaint maintainable.

Therefore, in the light of above authority, the present complaint is maintainable and the preliminary objection taken by the OPs does not hold good.

8]             Another objection taken by the OPs against the complainant is that vehicle in question was purchased in Feb., 2003 whereas the date of event of fire is 1.7.2008 i.e. after the lapse of 5 years and 4 months from the date of purchase.  Stating that the vehicle in question was carrying a warranty of only 18 months from the date of purchase whereas the alleged event happened after 5 years and 4 months, therefore, there is no liability of the OPs to make good the loss as the warranty in question has already expired on the date of the event.

9]             There is already an authority on the issue i.e. IV (2008) CPJ 131 of Delhi State Commission titled Bishamber Nath Sikka vs. Tata Motors Ltd. & Anr., decided on 1.4.2008 where it has been held that :-

“(ii) Motor Vehicles – Warranty – Vehicle defective – Warranty period cannot convert defective vehicle into perfect vehicle – defect if continues after warranty which had erupted before warranty, inference regarding manufacturing defect could be drawn – Vehicle to be declared as defective vehicle.”

                In view of the aforesaid authority, the preliminary objection raised by the OPs is invalid and unacceptable.

10]            The third objection taken by the OPs against the complainant is that the vehicle in question was a commercial vehicle and was being used for business purposes.  The OPs have not annexed any document or even a shred of evidence to prove that the vehicle in question was being used for commercial purposes.  On the contrary, the contention of the complainant is that the vehicle was purchased by him for his personal purposes and it was being used for the said purpose only.  There is also an affidavit given by the complainant to that effect. 

11]            As already stated in the foregoings, the complainant at his own got the car Surveyed from Er.H.C. Gupta, who is a qualified and approved Motor Surveyor.  Er.H.C.Gupta, in his report dated 8.8.2008 has stated as under:-

                        “Observations:

The vehicle was inspected at Vill.Choti Raipur Mohali where the burnt vehicle is parked.  The vehicle was seen totally burnt leaving only skelton remained.  Tyres, upholstery, rubber and plastic parts were melted and the other parts were damaged due to heat.  The photographs arranged during inspection are enclosed.

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

12]            During the course of proceedings, the complainant had made an application that he be permitted to get the vehicle further inspected from some expert of PEC University of Technology, Chandigarh to prove his contention that the vehicle caught fire due to some manufacturing defect in the car.  The said application was allowed by the Forum and the Institute was requested to submit the report on the issues involved.  The PEC University of Technology, Sector 12, Chandigarh had appointed a Committee of Three Experts headed by Dr.V.P.Singh, Head, Mechnical Engg. Deptt. PEC University of Technology, Chandigarh, who after inspecting the vehicle at the site to ascertain the cause of fire has given the following report:-

“In 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 of short circuit can not be ascertained by physically inspecting the vehicle and that too after two and half years of the incident.” 

13]            This report has also given the reason of fire due to spark caused by the short-circuit of wires and that the exact cause of short circuit could not be ascertained due to long time gap between the date of the event and the date of inspection, but the fact of short circuit stands fully proved and established. 

14]            The last objection taken by the OPs against the complainant is that the complainant after purchasing the vehicle from the OPs got fitted illegal and unauthorized additions like music system CD and LCD in the vehicle from some unauthorized dealer besides, additional lights in side or outside the vehicle, decoration lights, extra horns, noise hooters besides making rough use of the vehicle.

                According to the OPs, all these factors might have caused short-circuit in the wires leading to the fire resulting in total damage to the car.

                In reply to these contentions of OPs, the complainant stated that the car in question was offered strictly as a limited Edition Vehicle and was fully loaded at the time of its purchase itself, which means the vehicle already had all the required accessories like refrigerator, DVD player and other such like items fitted by the OPs themselves in it.  Therefore, there was no question of the complainant getting any extra gadgets fitted from an unauthorized agency as there was no need for the same.  The complainant has also submitted a complete list of Do’s and Don’ts in respect of Tata Safari : Limited Edition vehicle which proves the existence of all such accessories and gadgets in the car at the time of its purchase.  This clearly shows that at the time of purchase, the vehicle was already carrying all the accessories and as such it was fully loaded.  Thus, there was no need for the complainant to get any extra accessories fitted into the same any further and spending huge amounts on the same unnecessarily.

15]            The OPs while pleading  their case also stated that provisions of Order 23 Rule 1 of the C.P.C. are applicable in the present case, further saying that the complaint is not maintainable.  It is already well established that the different rules and provisions of Code of Civil Procedure are not straightway applicable to the Consumer Fora.  These are applicable only where it has been specifically stated to be so in the act itself.  Further, the OP has not even attached the copy of the warranty card showing that it was for a period of 18 months only.  Therefore, no one is sure about exact period of validity of the warranty as also its detailed terms &conditions. 

16]            On the same lines, the OPs say that there are certain other facts which are important to examine.  The question regarding short-circuit in the wires and that the vehicle was required to be produced for inspection either before this Forum or any expert to find out the present condition of the vehicle because incident of fire could have happened because of unauthorized additions in the vehicle.  There is no document on record to show that the OPs ever wrote to the complainant for producing the vehicle for inspection at their workshop and for appointing any expert to assess the present condition of the vehicle.

17]            Another point taken by the OPs is that when the complainant lodged the DDR in the police station, he stated that the vehicle caught fire due to short-circuit in the wires for which no one is responsible and that it happened by chance.  Stating further that the complainant had not alleged any manufacturing defect in the DDR.  It is quite clear that the DDR was lodged immediately after the incident of fire.  At that time even the complainant might not have been sure and certain about the cause of fire.  Therefore, there is no question of the complainant mentioning the manufacturing defect in the car due to which the fire took place at the time of lodging the DDR.

                As a matter of fact, it is only subsequently when the complainant got the vehicle inspected from the aforesaid Motor Surveyor of the Insurance Company that he came to know about the cause of fire.  It is also well established and admitted that the car in question purchased by the complainant is a luxury car for which he spent about Rs.12.00 lacs.  Therefore, it goes without saying that the car in question was already fully loaded with all kinds of accessories fitted in it at the time of its purchase.

18]            Last but not the least, the complainant on his part has already produced the expert report from  an approved Surveyor Er.H.C. Gupta, who submitted Motor Survey Report and secondly from a Team of Experts of PEC University of Technology Chandigarh, which is a Govt. of India Organization

                In both these reports, the probable cause of fire has been shown as short-circuit.  This clearly proves an inherent manufacturing defect in the car. The plea of other reasons raised by the OPs as the cause of fire being extraneous, are ruled out as per foregoing paragraphs.

                In contrast  to all the relevant and cogent documents produced by the complainant in support of his case, the OPs have not produced any counter expert report or any other document or paper in support of their case, which as such falls flat like nine pins.   

19]            Keeping in view the above detailed and comprehensive analysis of the entire case, in our considered view, there is a gross deficiency in service as well as unfair trade practice on the part of the OPs as they had sold a luxury car to the complainant costing about Rs.12.00 lacs, which had some inherent manufacturing defect leading to short-circuit of electrical wires and finally burning of the car completely resulting in total loss of the car. 

20]            In view of the foregoings, the complaint has a lot of merit, weight and substance and which deserves to be allowed in favour of the complainant and against the OPs.  We therefore allow this complaint in favour of the complainant and against the OPs with following directions to the OPs:-

                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. 

 23]                   Certified copy of this order be communicated to the parties, free of charge. After compliance, the file be consigned to the record room.

Announced

05.05.2011                                                                      

(LAKSHMAN SHARMA)

PRESIDENT

                                                           (ASHOK RAJ BHANDARI)

MEMBER