For the O.P.No.2: EXPARTE.
DATE OF FILING: 25.06.2014.
DATE OF DISPOSAL: 13.10.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging manufacturing defect in the vehicle in dispute and deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. The brief facts that are relevantly required for disposal of this consumer dispute that the complainant purchased a diesel Engine vehicle TATA LPT 1613, 697 Tale BS-III, Chasis No. MAT 373339D2A 00890 vide Retail Invoice No. 4270 dated 25.02.2013 from O.P.No.1 on payment of Rs.13,08, 905/- being financed by Sundaram Finance Ltd., Berhampur hypothecated in his name. After purchase and delivery of the said vehicle started giving starting problems and the mechanics of the O.P.No.1 checked and redressed the defect found in the FIP & the Nozzle. But the O.P.No.1 did not take adequate care to see the nature of defect of FIP and Nozzle by calling the O.P.No.2 or to replace it, in case the FIP and Nozzle installed in the vehicle in question was initially defective. After curing the defect of the FIP to same extent the vehicle was delivered to the complainant on dated 25.02.2013. After that, getting it registered in the office of the R.T.A. Chatrapur, Ganjam on 20.04.2013 vide Regn. No.OD-07- B 1194, the complainant used his vehicle for transportation of goods from Berhampur to different places of Ganjam & Gajapati district. The complainant regularly used diesel only to ply the vehicle by purchasing from authorized dealer of H.P. namely Ashraf Petrol Filling Station, Berhampur. After plying about 22,253 Kms and on a return trip from Chandiput on 07.02.2014, the loaded truck in question did not run and detained at Chandiput on 07.02.2014. It is also stated that the complainant reported about starting problem of the vehicle to nearby authorities of O.P. No.1 i.e. TATA Motors Consortium Automobiles (P) Ltd, a Light Commercial Vehicle Dealer situated at N.H.5 Sundurapalli, Chhatrapur, Ganjam over phone. The mechanic of the said Consortium Automobiles arrived at Chandiput on same day and checked but failed to detect the defect of the vehicle. Again the mechanics visited Chandiput on 08.02.2014 & 10.02.2014 for check up and find out defect of the vehicle but failed. Lastly, on 12.02.2014 the mechanics detected that the FIP and Nozzle are found to be defective and removed and brought to Chatrapur and then sent to O.P.No.2 for repairing. The Service Manager, Mr. Bhismay Singh of O.P.No.1 informed to the Consortium Service Centre, Chatrapur, that F.I.P. and Nozzle of the vehicle are damaged due to adulteration of fuel but did not advise to draw sample from diesel tank of the vehicle for testing by sending to Authorized Laboratory for examination and to confirm about the alleged adulterations of fuel. It is further stated that the Consortium Service Centre, Chatrapur without confirming the allegations believed on the baseless allegation of the Service Manager of O.P.No.1 and informed such fact to complainant. The O.P.No.1 also did not take steps to test the diesel of the vehicle and believed on the version of Area Manager. The complainant informed to the O.P.No.1 over phone on 15.02.2014 that the defect found in FIP and Nozzle is within the warranty period of 18 months and liable to replace the same free of cost. However, the O.Ps informed that the FIP and Nozzle was defective due to use of adulteration fuel in the vehicle. The inaction of O.P.No.1 to take suitable steps for replacement of damaged FIP and Nozzle within the stipulated warranty period amounts to deficiency in service since the O.Ps stated that it can’t be repaired. It is also alleged that warranty of FIP and Nozzle was confined in between the O.P.No.1 and 2 but not notified to the complainant. The O.P.No.2 informed to the complainant that the cost of the repair charge of FIP and Nozzle will be Rs.55,000/- and Rs.9,456/- respectively and cost of the new FIP and Nozzle will be Rs.72,456/-. In order to protect the damage and demurrage of the vehicle, the complainant preferred a new FIP and Nozzle on payment of Rs.72,456/- in the bank account of O.P.No.2 on 18.02.2014 for installation in the vehicle and to run the vehicle smoothly in the existing diesel. The complainant issued a legal notice to both the O.Ps through Advocate on 11.03.2014 by registered post with AD demanding for payment of the cost of the FIP and Nozzle amounting to Rs.72,456/- together with the damage of Rs.66,000/- due to breakdown of the vehicle due to damages of FIP and Nozzle and its non replacement within the warranty period which amounts to deficiency of service. The O.P.No.1evasively replied and O.P.No.2 remained silent and did not give any heed to the grievances of the complainant. Hence, the complainant has filed this consumer dispute alleging deficiency in service on the part of the O.Ps and prayed before this Forum to direct the O.Ps to pay Rs.72,456/- towards cost of the FIP and Nozzle along with financial loss of Rs.60,000/- due to break down of the vehicle and Rs.50,000/- towards mental torture and to grant cost of the case in the best interest of justice.
3. Upon notice the O.P.No.1 appeared through learned counsel Shri Rajat Kumar Dash, Advocate & Associates and filed written version. It the written version it is stated that O.P.No.1 is the Sales and Service Center of TATA Motors Ltd and it is not a fact that the said Sales Office has branches all over the State of Odisha. The Dealership or the Authorized Service Centre which are situated through the State of Odisha are not branches of the O.P.No.1 but are Dealers who have entered into Dealership agreement with TATA Motors Ltd on such terms and conditions as stated in the dealership agreement. It is not a fact that the O.P.No.1 did not take adequate care to see the nature of defect of the vehicle. It is always the endeavor of service center to provide good and proper service to all its customers. In this reference Clause 3 of the warranty conditions of the vehicle, is referred to which states that, “With regard to parts not manufactured by us but supplied by other parties, such as tyres, batteries, rubber parts, electrical equipment, measuring instruments, diesel injector pumps and accessories, the buyer shall be entitled to exercise, so far as permissible by law, such rights as we may have against those parties under warranties, if any given by them.” Accordingly, for damage to the FIP and the Nozzle the O.P.No.1 has no authority to direct the OP No.2, to replace the FIP and the nozzle as the OP No.1 is strictly guided by the warranty conditions of those parts. Since the product has been manufactured and supplied by MICO, as such the decision as to whether the unit is having any defect or not had to be taken by them and the OP No.1 has no role to play in the same. The complainant used only diesel to ply the vehicle by purchasing from the authorized dealer of HP i.e. Ashraf Petrol Filling Station has no basis and neither any documentary evidence has been produced to justify the claim. Moreover, it is very difficult to continue to fill up fuel from one single petrol pump if the vehicle had to travel to different locations. As such the claim of the complainant that only pure diesel was used to operate the vehicle is devoid of any material basis and same is denied. It has been observed that as and when adulterated fuel is used in any vehicle then it affects the FIP of the vehicle as well as other sensitive parts of the vehicle resulting into subsequent damage of those parts of the vehicle. On perusal of the service history of the vehicle it appears after covering a distance of 22,253 Kms the vehicle was brought to the service center of Consortium Automobiles (P) Ltd with the complaint of starting problem wherein pushrod Chamber cover (includes removal and reinstallation of fuel injection pump and onsite repairs were done). The said services were done under warranty save and except the issue of FIP was referred to the O.P.No.2. It is submitted that Mr Bhismay Singh the then Area Service Manager of Odisha from the nature of damage that occurred in the FIP and Nozzle could ascertain that the damage occurred due to use of adulterated fuel. The same was communicated to the complainant by the Service Center and if the complainant was not agreeable to accept the findings he was at liberty to get the diesel tested by the appropriate authority which was not done by the complainant and the complainant is trying to shift the onus on the Area Service Manager. Moreover, for carrying out this type of testing by the Laboratory expenses were required to be incurred as well as time is required to be spent and in the meantime the vehicle will remain standard. It is always the intention of the OP No.1 that the down time of any vehicle which has come for service is kept minimum so that the owner of the vehicle do not suffer due to non-availability of the vehicle in question. It is not a fact that the complainant was not informed about the warranty policy at the time of sale of the vehicle. On the contrary, at the time of sale of the vehicles the Service Book was handed over to the customer and all customers are asked to go through the same as well as follow the guide line mentioned in the book for proper up keep and maintenance of the vehicle, so mere denial that nothing was explained will not serve the purpose. Again it is reiterated and it is specifically mentioned in Clause 3 of the warranty terms and conditions of the vehicle that, “With regard to parts not manufactured by us but supplied by other parties, such as tyres, batteries, rubber parts, electrical equipment, measuring instruments, diesel injector pumps and accessories, the buyer shall be entitled to exercise, so far as permissible by law, such rights as we may have against those parties under warranties, if any given by them.” As such the FIP falls under this category since it has not been manufactured by TATA Motors Ltd but has been manufactured by MICO, BOSCH, accordingly the warranty terms of MICO will be applicable in this case. The FIP and the Nozzle will be repaired under warranty, but same was rejected and the complainant is very much aware of the same. Accordingly, there is no inaction on the parts of the O.P.No.1 and neither there is any deficiency in service. There is no intention of causing any harassment to the complainant. It is again reiterated that the manufacturer of the FIP and Nozzle based on investigation came to the findings that adulterated fuel was used. Now the complainant is trying to make a submission that since the vehicle is running fine even after usage of the remaining fuel in the tank that means the fuel used was not adulterated. On the contrary it is not the case that FIP and Nozzle became defective only on using the fuel that was there in the fuel tank when the vehicle was sent to Consortium Automobiles. When adulterated fuel is used in any vehicle it will gradually damages the system resulting into damages of the FIP and the Nozzle which happened in this case. It is not a question of testing the diesel from the Tank of the vehicle when it reached the service center. From the nature of the defect the findings is arrived at, there were usages of adulterated fuel and without use of such contaminated diesel oil the FIP or the Nozzle will not become defective. Had there been any confusion the complainant should have tested the same from ARAI Pune and submitted a report from the said authority as to how such FIP or the Nozzle became defective, as because ARAI Pune is the appropriate authority in deciding as to whether there is actually any defect in the FIP or the Nozzle. The complainant has claimed that the vehicle got stand from 7.2.14 to 27.2.14 due to delay in supply of new FIP and the Nozzle by the O.P.No.2, and claims damages for the same to the tune of Rs.66,000/- and the same is denied in particular and the question of indemnifying for that also does not arise. There is no privity of contract along with the complainant and the o.P.No.1 as such the onus of the complainant is also to maintain the vehicle properly. The O.P.No.1 did what is best possible for them to ensure that the damage done in the vehicle is rectified at the earliest. Since the FIP and Nozzle was replaced on cost paid by the complainant and the damage occurred because of the usages of adulterated fuel the complainant can’t shift the responsibility on the O.P.No.1. It is again reiterated that he question of replacing the FIP free of cost does not arise at all. It can only be replaced if the product fails during the warranty period because of defect in the product and the manufacturer agrees that it is indeed a manufacturing defect, but same is not the incident in this case. Moreover the prayer of the complainant for a direction upon the opposite parties to pay the costs of the FIP and Nozzle of Rs.72,456/-, financial loss of Rs.66,000/- due to break down of the vehicle and Rs.50,000/- towards mental torture and to grant cost of the case is contrary to law and is untenable. Hence O.P.No.1 prayed that the case are bald, frivolous, misconceived and made without any merit and the instant complaint be dismissed with costs.
4. Notice was issued against the O.P.No.2 but he neither chooses to appear nor filed any written version, hence the O.P.No.2 was declared ex-parte on 02.05.2016 and was proceeded accordingly.
5. On the date of hearing we heard arguments from the learned counsel for the complainant as well as for the O.P.No.1. We have also considered the submissions made by the learned counsels for respective parties and also perused the written arguments. We have also gone through the materials available on the case record submitted by respective parties before this Forum.
During the course of argument of the consumer dispute and on a perusal of the submissions of both the learned counsels and on going through the record of the file, we find that there is no doubt or dispute that the vehicle was purchased from the O.P.No.1 as is evident from the case record and the O.P.No.2 is the authorized dealer of MICO of BOSCH company. In this case, the complainant has alleged manufacturing defect in the vehicle in dispute due to the alleged damage of FIP and Nozzle of the vehicle on 07.02.2014 after running 22,253 KMs during the warranty period of 18 months and on the contrary the learned counsel for the O.P.No.1 contended that it was due to use of adulterated diesel in the vehicle by the complainant. It is also contended by the complainant that to check the further damage of the vehicle in dispute he replaced both FIP and Nozzle of the vehicle on payment of Rs.72,456/- in the authorized workshop of O.P. No.1 and suffered financially and mentally due to manufacturing defect of the vehicle. In this case the O.P.No.1 contested the case and the O.P.No.2 did not prefer to contest the case as a result he was proceeded exparte. In the foregoing fact and circumstances of the case, the issues crop up for our consideration as to (i) whether the vehicle was within warranty period? (ii) Whether the FIP and Nozzle was found defective due to use of adulterated diesel in the vehicle in dispute by the complainant? And (iii) whether the complainant is entitled to get refund of cost of FIP and Nozzle from the O.Ps and cost and compensation?
6. To address and adjudicate the first issue as framed above, we would like to state that the complainant purchased the vehicle in dispute vide Invoice No.4270 dated 25.02.2013 on payment of Rs.13,08,905/- as is evident from the Annexure -1 of the documents filed by the complainant placed on the case record. The warranty period of the vehicle was for 18 months as per the terms and conditions of the warranty card issued by the O.P.No.1 as evident from the copy of warranty card placed on the case record. Accordingly warranty period of the vehicle is valid up to 24.8.2014 since the vehicle was purchased on 25.02.2013. As per the complaint, which is not denied or disputed by the O.Ps that the FIP and Nozzle of the said vehicle was found defective on 07.02.2014 hence squarely comes under the warranty period. On a bare perusal of the terms and conditions of warranty we find that there is no specific exclusion clause kept in the warranty conditions that warranty is not covered for FIP and Nozzle of the vehicle during warranty period. Hence, it is crystal clear that the FIP and Nozzle of the vehicle was found defective during warranty period of the vehicle in dispute after running of only 22, 253 Kms as is evident from the case record.
7. With regard to the second issue as stated above, we would like to state that as per the contentions of the learned counsel for the O.P.No.1, the FIP and Nozzle of the vehicle was found defective due to use of adulterated diesel by the complainant. On perusal of the materials placed on record, we find nothing to prove that the FIP and Nozzle was found defective due to use of adulterated diesel by the complainant. In our view, we would like to state that the learned counsel for O.P.No.1 has orally pleaded that it was defective due to use of adulterated diesel but he has failed to produce any substantial documentary evidence in support of his pleadings. The learned counsel for the O.P. No.1 has failed to submit a technical report from any authorized laboratory of oil company to prove his point and in absence of any cogent and convincing technical report we are unable to accept the arguments of the learned counsel for the O.P.No.1 that the FIP and Nozzle was found defective due to use of adulterated diesel in the vehicle by the complainant. Hence, the O.P.No.1 miserably failed to prove his contention in this regard and in absence of any proof in shape of technical report from competent laboratory we are unable to accept the arguments of learned counsel for the O.P.No.1. In our considered view, the FIP and Nozzle was found defective during the warranty period of the vehicle in dispute and the O.P.No.1 is liable to replace the same or to pay the cost of replacement.
8. With regard to third issue as stated above, in this case, the complainant has prayed before this Forum to direct the O.Ps to pay Rs.72,456/- towards cost of FIP and Nozzle and to compensate the financial loss of Rs.66,000/- due to break down of the vehicle and to pay Rs.50,000/- for mental agony and cost of litigation. On a perusal of the materials placed on the case record, we find that the complaint has paid a sum of Rs.72,456/- to the bank account of O.P.No.2 on 18.02.2014 towards payment of cost of FIP and Nozzle. On further perusal of documents, it reveals that the O.P.No.1 has sold the vehicle to the complainant and the O.P.No.2 has supplied the FIP and Nozzle to the complainant on receipt of amount when it was found damaged on 07.02.2014 for replacement. In the foregoing peculiar fact and circumstances, the vehicle was sold by O.P.No.1 and the FIP and Nozzle was found defective during warranty period which means the O.P.No.1 is to compensate the loss of the complainant. The O.P.No.2 has supplied the FIP and Nozzle to the complainant on payment of Rs.72,465/- as a retailer business man and there was no such contractual obligation to supply the FIP and Nozzle to the complainant free of cost during warranty period and thus he is not liable to refund the said amount to the complainant.
9. Apart from above, we would like to state that since the FIP and Nozzle of the disputed vehicle was found defective during warranty period of the vehicle, the O.P. No.1 is liable to refund the amount of the FIP and Nozzle to the complainant. As far as the cost and compensation is concerned, we would like to state that in this case the complainant has prayed to direct the O.Ps to pay Rs.66,000/- towards financial loss and Rs.50,000/- for mental agony and cost of litigation. However, on a perusal of the case record, we find nothing in support of the claim of the complainant and there was not a scrap of paper to prove that the complainant in fact has suffered such a huge financial loss due to non-replacement of the FIP and Nozzle by the O.Ps. Hence, we are not inclined to award such huge amount as compensation in favour of the complainant but we are convinced that the complainant has hired the services of a professional Advocate to file his complaint in this Consumer Forum; hence he is entitled for cost of litigation. As for as the cost of litigation is concerned, we feel that a sum of Rs.2,000/- will be just and proper in the fact and circumstance of the case to award towards cost of litigation which will be borne by the O.P.No.1and to be paid to the complainant.
10. In this case, the learned counsel for the O.P.No.1 during the course of argument has relied on a catena of decisions of Hon’ble Supreme Court and Hon’ble National Commission respectively to derive strength in support of his arguments such as in the case of Indian Oil Corporation Vs. Consumer Protection Council, Kerala & Anr, reported in 1994, 1 SCC 397, in the case of Bharati Knitting Company Vs. DHL Worldwide Express Courier reported in 1996, 4 SCC 207, in the case of Laxmi Engineering Works Vs. PSG Industries Institute reported in 1995, II CPJ I (SC), in the case of Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & Anr reported in JT 2006 (4) SC 113 and in the case of Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & Anr reported in JT 2006 (4) SC 113 and in the case of Maruti Udyog Ltd Vs. Nagender Prasad Sinha & Anr reported in II(2009) CPJ 295(NC) respectively and submitted that the case may be dismissed due to devoid of any merit. On perusal of the above citations and on going through the decisions of Hon’ble Supreme Court and National Commission, we find that in the case of Indian Oil Corporation Vs. Consumer Protection Council, Keral & Anr, there was discussion regarding privity of contract between parties and as per the said decision in absence of privity of contract or absence of such document there is no deficiency in service. But in the instant case, we feel there is privity of contract since the complainant is a consumer under O.P. No.1 who has purchased the vehicle from the O.P.No.1 as discussed above hence the said decision is not applicable to this case. Similarly, in the case of Bharati Knitting Company Vs. DHL Worldwide Express Courier, the Hon’ble Supreme Court held that parties are bound by the contract documents and in case of acute dispute of facts and circumstances parties should be referred to Civil Courts for remedy. However, in the present case there is no dispute of facts and as per the terms and conditions of warranty, the O.P.No.1 is liable to make good of the loss of the complainant hence this citation is also not applicable to the present case in hand. Further, in the case of Laxmi Engineering Works Vs. PSG Industries Institute reported, the Hon’ble Supreme Court held that complaint is not maintainable on the ground of complainant is not a consumer and as per the Consumer Protection Act, 1986 a person who buys goods and use himself exclusively for purpose of earning livelihood by means of self employment is within the definition of expression of consumer. If machinery purchased for commercial purpose by the complainant, he is not a consumer. In this case, though the learned counsel for the O.P. No.1 contended that the vehicle was purchased for commercial purpose but he failed to prove that the said vehicle was used for commercial purpose and not for earning his livelihood by the complainant. On the contrary, as per the contentions of the learned counsel for the complainant, he was earning his livelihood out of the vehicle and it was not used for commercial purpose. When the learned counsel for the O.P.No.1 failed prove that the said vehicle was used for commercial purpose, the applicability of said decision does not arise. Likewise, in the case of Maruti Udyog Ltd Vs. Nagender Prasad Sinha & Anr, the Hon’ble National Commission held that the relationship between the Maruti Udyog Ltd. and the dealer is on the basis of principal to principal and as such Maruti Udyog Ltd would not be liable for the acts of the dealer. However, in the present case, the complainant has not claimed any loss from the principal company of TATA Motors for the act of the dealer O.P.No.1rather has prayed to make good the loss by the dealer himself who has sold the vehicle to the complainant. Hence, the said decision of the Hon’ble National Commission is not applicable to the instant case due to distinguishable factual difference of both cases. Further, in the case of Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & Anr, Hon’ble Supreme Court held that in case of manufacturing defect of vehicle if manufacturing defect is not proved relief can be moulded and defective part to be replaced but vehicle can’t be replaced. In the present case the complainant has not contended to replace his vehicle rather prayed to direct the O.Ps to replace the defective FIP and Nozzle of the vehicle in dispute which was found defective during warranty period. Accordingly, as per the fact and circumstance of the case, the O.P.No.1 is liable to replace the FIP and Nozzle and in this case since the complainant has already replaced the damaged FIP and Nozzle of the vehicle, the O.P. No.1 is liable to refund the cost of FIP and Nozzle to the complainant. Hence, the said decision has not derived any strength to support the case of the O.P.No.1 hence we are not inclined to accept the same in support his argument. In view of foregoing discussions, all citations filed by the learned counsel for the O.P. No.1 as stated above are rejected since they are not applicable to the instant case due to distinguishable facts of the above citations from that of the present case.
11. In view of the above fact and circumstance and in the light of foregoing discussions, in our considered view we would like to state that the FIP and Nozzle of the vehicle was damaged during the warrant period and the same is liable to be replaced by the O.P. No1. In this case as we have already discussed that the complainant has already replaced the FIP and Nozzle of the vehicle purchased from O.P.No.2 on payment of Rs.72,465/-, the said amount shall be refunded by the O.P.No.1 to the complainant. We have also discussed above about the role and responsibilities of the O.P.No.2 and being an independent business man he is entitled to get cost of his product that was sold to the complainant and he is not liable to make good the loss of the complainant. In the light of above discussions, we partially allowed the case of complainant against O.P.No.1 and dismissed against O.P.No.2.
12. In the result, we direct the O.P.No.1 to refund an amount of Rs.72,465/- to the complainant towards purchase of FIP and Nozzle of the vehicle in dispute. We further direct the O.P.No.1 to pay a sum of Rs.2,000/- to the complainant towards cost of litigation. He above orders shall be complied by the O.P. No.1 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under the relevant provisions of Consumer Protection Act, 1986. As discussed above there is no order as to compensation. The case of the complainant is disposed of accordingly.
13. The order is pronounced on this day of 13th October 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
