Per Shri Atul D. Alsi – Hon’ble President.

              The Opposite Party 1 & 2 are manufacturers of four wheeler vehicles and Opposite party no.3 is authorized dealer of Opposite Party No. 1 and 2.    

2.            Complainant had purchased vehicle TATA Venture Car from its authorized dealer i.e. Opposite Party No.3 on dated 08/07/2011 and subsequently got R.T.O. Registration No. MH-35/P-2178 having Engine No. YSA0671, Chassis No. BYE05256.

3.            After two months on dated 19/09/2011, the engine of vehicle was abruptly overheated and the vehicle stopped functioning.  The complainant had immediately taken the vehicle to Nagpur by towing it from Arjuni-Morgaon to Nagpur in service station of opposite party No.3.   Opposite party No.3 had carried some repair and handed it to complainant by saying that all problems in the vehicle had sorted out.  Opposite party No. 3 had also taken charges Rs. 6250/- from complainant towards repairing charges.   

4.            After lapse of 3 days, same problem was generated in the vehicle and the vehicle was stopped working and even switches of vehicle were not working.  Opposite party No. 3 had made some major repairing in the vehicle and handed it over to complainant.  Even after repairing, the vehicle was not working up to mark though it is new vehicle and the problem of over heating, malfunctioning of radiator, clutch, Gears etc. was there in the vehicle.

5.            In the year 2012, complainant on several occasions took vehicle in service station of opposite party No.3 due to continuous problem in the vehicle.

              On dated 12/03/2013, complainant had handed over the vehicle to opposite party No. 3 along with complaint in writing, about the various initial defects in vehicle.  On dated 03/04/2013, opposite party No.3 had returned the vehicle to complainant by giving written undertaking that all the defects in the vehicle were removed and in future no faults will be occurred in the vehicle. But after lapse of one and half month again the similar problems were generated in the vehicle. 

6.            Complainant had lastly left vehicle on dated 03/07/2013 with opposite party No. 3 for the manufacturing defects in the vehicle and since thereafter the vehicle is in custody of opposite party No.3.

7.            There is manufacturing defect in the vehicle since date of its purchase.  The above act of opposite party No. 1 to 3 amounts to deficiency in service and unfair trade practice.   Since purchase of above vehicle complainant and her family had lost their mental peace, money and reputation.

8.            The complainant had lastly issued notice dated 06/06/2014 and 16/06/2014 to opposite party No. 1 to 3 by mentioning all above facts and requested to replace the vehicle with new vehicle or to refund the amount of vehicle Rs. 4,67,383/- with 12% interest from date of purchase i.e. 08/07/2011 and to pay damage of Rs. 3,00,000/- towards physical and mental harassment within 15 days of receipt of notice.

9.            The cause of action to the present complaint firstly accrued on dated 23/05/2013 when technician of opposite party No.3, had admitted that there is manufacturing defect in vehicle and further arose on dated 03/07/2013 when complainant had lastly left vehicle with opposite party No. 3 for the manufacturing defects in the vehicle.

10.                   After receiving the notice issued by the Forum, the O.P. No. 1, 2 & 3 appeared through their counsel and filed their written statement before the forum. 

11.                   In their reply, the O. P. No. 1 & 2 submits that the car 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 (in short “ARAI”) .  The cars and vehicles manufactured at the plant of the answering O.P. are also thoroughly inspected for control systems 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.

12.                   The service centers, having excellent workshop setup for after sales servicing of the cars, which are manned by qualified and experienced personnel only. 

13.                   Presently, the answering opposite party has such workshops in excess of 800 in numbers across the country.  These workshops provide scheduled services, running repairs, major repairs; spare-parts support and even carry out accident repairs to the passenger cars and utility vehicles.  It is further stated that all dealer workshops have dedicated helpline for attending to any breakdown, thus assisting the customers in distress situation and in all India 24 x 7 Toll Free helpline is operational over and above the dealership helpline.

14.                   That the complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act, 1986 as there is neither any manufacturing defect was proved in the vehicle in question nor any deficiency in service had been established against this opposite party.

15.                   Complainant had purchased and used the said vehicle for business purposes.  It is submitted that the vehicle in question has been used for commercial activities in order to generate profit.

16.                   The opposite party states that the complainant had failed and neglected to follow the guidelines give in the operator’s service book, as recommended for smooth and better performance of the vehicle in question at optimum cost viz. correct operating procedures- do’s and don’ts for maintenance and performance of the vehicle.

17.                   As per the recommended service schedule, give in the Operator’s service book, the owner of the vehicle is advised to follow certain guidelines for smooth and better performance of the vehicle.  In this case, complainant is very negligent about the maintenance of the vehicle, she missed the third free service, warranty of the said vehicle terminated the opposite party relies on relevant clause 5 of the terms and conditions of warranty.

18.                   Clause 7 “This warranty shall be null and void if the vehicle is subjected to abnormal use such as rallying, racing or participation in any other competitive sports.  This warranty shall not apply to any repairs or replacement as a result of accident of collision”.

              The vehicle is checked at the workshop by the Quality Inspector (Q.I.) and by Diagnostic Expert cum Trainer (DET) during pre and post repairs to ensure quality workmanship.

              The complainant admitted that the said vehicle is hypothecated by the A. U. Finance (India) Ltd.  It is proved that the complainant is not the absolute owner of the said vehicle.  The actual owner of the said vehicle A. U. Finance (India) Ltd.  Complainant cannot file the complaint without previous permission of the A. U. Finance (India) Ltd. He did not add A. U. Finance (India) Ltd.  as defendant in complaint thus the complaint is liable to reject because non-joiner of necessary party. 

              The dispute in nature involves lot of technicalities, lot of examination and cross-examination of witnesses, inquiry determination of complicated questions facts of law involved, as such the present complaint can not be agitated before the Hon’ble Forum and it can only be tried before the Civil Court. 

19.                   The complainant without any expert evidence in para manufacturing defect complainant has filed this baseless complaint alleging manufacturing problems in the vehicle without having produced any expert opinion/documentary proof in the form of evidence from a notified laboratory to prove that the subject vehicle suffers from the problems as alleged, which necessitated service of the vehicle free of costs under warranty, or to establish any manufacturing defect in the car in question.             

20.                    The O. P. No. 3 in his reply submits that when the vehicle come for its repairs, the O.P.No.3 has attended the vehicle and repaired to the utmost satisfaction of the complainant. The complainant in the instant para has leveled false and baseless allegations with an intention to get the vehicle replaced with a new one.  However, the vehicle is registered vehicle with Regional Transport Officer (RTO) and Registration Certificate can not be cancelled, therefore, it is practically not possible to take back the vehicle and replaced with a new one.

21.                   The present complaint filed by the complainant is a premature complaint and further the complainant miserably failed to prove that there is any manufacturing defect in the vehicle.  The complainant further failed to prove that there is any deficiency in service on the part of opposite party no. 3 and hence the entire complaint is liable to be dismissed with cost.   The opposite party no. 3 has not received the consideration amount of the vehicle and hence it may not be held responsible for payment of the vehicle amount nor it is responsible for payment of any damages or litigation charges as alleged.

22.                   In his specific submission the O. P. No. 3 submits that the complainant’s vehicle met with an accident and was repaired on 31/07/2012 and again it was met with an accident and repaired on 22/10/2012.  This fact is not disclosed by the complainant in her entire complaint.  It may be noted that at no point of time the complainant’s vehicle was kept in the workshop of opposite party no. 3 for a month for repairs, however, it was the complainant who did not pick up her vehicle from the workshop of opposite party no. 3 after repairs, as she was under influence that since she was not paying regular installments to financer, one day her vehicle would be seized.  Many times the opposite party no. 3 sent reminders to the complainant for collection of vehicle, however, she on one pretext or the other refused to collect her vehicle from the workshop of opposite party no. 3.

23.                   When the vehicle was sent for its repairs, it was repaired to the utmost satisfaction of the complainant.   The mechanics in the workshop of opposite party no. 3 are trained mechanics and approved from Tata Motors Limited.  The opposite party no. 3 is having well educated Managers in the workshop who are having total control over the mechanics.  The opposite party no. 3 is an authorized dealer for sales and service of a renowned automobile company of India i.e. M/s. Tata Motors Ltd.  Therefore all allegations are baseless and false.      

24.                   The complainant has filed copy of tax invoice at page no. 15, copy of job slip at page no. 16, copy of cash receipt of O. P. No. 3 at page no. 17, copy of New Moon Convent, Arjuni/Morgaon at page no. 18, copy of pro-forma invoice of O. P. No. 3 at page no. 19, copy of letter of complainant to O. P. No. 3 at page no. 20 & 21, copy of postal receipts at page no. 22, copy of letter of O. P. No. 3 to complainant at page no. 23, copy of job slip at page no. 24 & 25, copy of letter of complainant to O. P. No. 3 at page no. 26, copy of legal notice dated 06/06/2014 at page no. 27, postal receipts at page no. 30, copy of legal notice dated 16/06/2014 at page no. 31, postal receipts at page no. 34 on record.     

25.                   The letter issued on 12/03/2013 for continuous problem in engine, clutch, gear etc. in favour of O. O. No. 3 for replacement of vehicle.  The job card dt. 23/05/2013 containing problem of running engine and requires repairs.  The job card contains problem of running engine & require repairs.  The letter issued to O.P. for vehicle  containing problem of radiator, engine, clutch etc. and it could not be solved  therefore, it require replacement of vehicle.  The problem is continuous, it is not remand.  After short running vehicle stop and it require repairing of engine.  The Job Card contains some problems still it is not remand by O.P., therefore the vehicle could not run.  The above defect is manufacturing defect hence vehicle may kindly be order to replace.

26.                   The learned counsel for opposite party No. 3 was absent at the time of oral argument.

27.                   The counsel for O.P.No.3 filed list of documents on 06/12/2014 at page No.71.  The service history of vehicle of complainant at page No. 72, Notice issued by complainant dated 31/10/2013 is at page No.78, reply of O. P. dated 06/01/2014 is at page No. 81. Postal receipts dated 07/01/2014 is at page No.84, reply given to Adv. Rajankar dated 23/06/2014 at page No.85.

28.                   The complainant filed evidence by way of affidavit at page No.90 and O.P. No. 1 and 2 filed evidence by way of affidavit at page no. 94.  The complainant filed affidavit by way of evidence of Anand Chandak  as witness for manufacturing defect at page no.100.

29.                   The counsel for complainant Mr. S.B.Rajankar argued that the Job Card dated 14/09/2011 bears the problems of engine over heating.  The vehicle was towed for twice for repairs towards the service center of O.P.No.3 as per letter issued in favour of O.P.No.3 dated 10/10/2011 it bears the signature of mechanic of O.P.No.3.

30.                   The counsel for O. P. No.1 & 2 Mr. Anant Dixit argued that complainant’s vehicle was attended properly.  The workshop is well equipped and staff is expert.  There is no manufacturing defect in the vehicle.  No proof of expert evidence is produced on record by complainant.  Hence it deserves to be dismissed with compensatory costs.

31.                   Considering the rival contention of the party & submission made before us the following points arise for consideration & finding there on along with reasons.

REASONING & FINDINGS

32.                    The complainant has purchased TATA Venture Car manufactured by O.P.No.1 and 2 from authorized dealer No.3 bearing Reg. No. MH-35/P-2178 having Engine no. YSA06719 and Chassis No. BYE05256 for Rs. 4,67,383=00 on 08/07/2011 as per invoice filed at page No. 15.

33.                   After two months from the date of purchase the engine of vehicle was overheated and stop functioning.  The complainant took his vehicle for repairing to O.P.No.3.  But again after 3 days the same problem was continued and thereafter the same defect was continued in the vehicle.  The Job Card dated 14/09/2011, 23/05/2013 and 22/06/2013 were having same problem of engine running.  The letter issued by complainant on dated 10/10/2011 at page No.18 and letter dated 04/12/2012 and letter dated 12/03/2013 having same problem about running of engine.  Therefore, the problem in engine is continuous, not removable after making many attempts by the experience mechanics and engineers with all modern equipment with O. P. No.3.  The engine is basic and vital part of vehicle.  When it is not functioning properly then vehicle has to be replaced.   Therefore, the vehicle has manufacturing defect in engine.  The manufacturing defect can be seen from the fact and circumstances of the case.  For each and every case it is not mandatory to have expert certificate of engineer as laboratory report in respect of manufacturing defect.  The documents itself are sufficient to conclude that the vehicle has engine problem which is continue repeatedly and not removable.  Therefore it is manufacturing defect.  The complainant has very well proved that it is manufacturing defect by filling hand written job cards of O. P. 

34.                   The O.P. No. 1 & 2 fail to prove its contention that the vehicle do not have manufacturing defect by examining  the expert who attended the vehicle by way of evidence on affidavit before Forum.  Therefore, the contention of O.P. No. 1 & 2 can’t be accepted.  The O. P. has not proved the allegation of vehicle was used for commercial purpose by independent evidence.  Hence the contention that the vehicle was used for commercial purpose can’t be accepted. 

35.                   The complainant and her Advocate Mr. S. B. Rajankar has issued notice on 06/06/2014 and 16/06/2014 mentioning the vehicle has engine problem that could not be removed after several attempts made by O. P. No. 3 with direction of O. P. No. 1 & 2.   Therefore the O. P. No. 1 & 2 is liable to replace new vehicle of same model and bear all expenses for registration purposes to make vehicle roadworthy.  

              Hence the following order is passed.            

                                  -: ORDER :-

1.            The complainant’s complaint is partly allowed.

2.            The O. P. No. 1 & 2 are directed to replace the old vehicle TATA Venture Car of the same model with new vehicle of similar type to the complainant and bear all expenses of registration of vehicle.

3.            The O. P. No. 1 & 2 are directed to pay Rs. 1,00,000/- for mental torture and mental agony along with costs of litigation of Rs. 10,000/- to the complainant.

4.            The above amount shall be paid within 30 days from the date of receipt of this order.

5.            No order is passed against O.P.No.3.