PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding defective motor car sold by Opposite Party No.3 and manufactured by Opposite Party No.1 & 2. The facts of the case as stated by the Complainant are that he has purchased Tata Indica XETAV2 (GLS) car having R.T.O. Registration No.MH/04/CT/1191 (hereafter called as said car) from Opposite Party No.3 on 19/08/06. He has spent Rs.3,17,918/- towards the price of the said car RTO Tax and insurance premium etc. For the purchase of this car he has obtained a loan of Rs.2,50,000/- from HDFC Bank through ADPIS Marketing.
2) The Complainant has further stated that soon after the purchase he observed serious manufacturing defects in the said car i.e. the balance of the car, tyre wear, wheel alignment and suspension. Because of these defects its tyre consumption rate is more and it requires frequent change of tyre. The Complainant immediately brought these defects to the notice of the Opposite Parties at the time of servicing of the said car within 3 months of its purchase as well as he wrote a letter on 27/10/06 to Opposite Party No.3 mentioning the defects. He again wrote series of letters i.e. on 10/11/06, 20/1/06, 22/11/06 and 29/11/06 in this respect to the Opposite Parties.
3) On 13/11/06 the Opposite Party No.3 sent the tyres for inspection to the Bridge Stone Tyres. The Brige Stone Tyre sent its report stating that only one side is in wear positing. The Complainant states that this report indicates that there were no manufacturing defects in the tyres but the car itself was having wheel alignment, suspension and bearing problems. The Complainant thereafter demanded the replacement of the whole vehicle or refund of the entire cost and expenses.
4) The Complainant has further added that the Opposite Parties are simply repairing the said car and thereby charging the Complainant for the same. For this the Complainant has attached the job cards and vouchers at Exh.‘F’.
5) The Complainant has stated that he is not using the said car at present.
6) Finally the Complainant has prayed that the Opposite Party be directed to give delivery of new brand car or pay the sum of Rs.3,17,918/- to the Complainant with interest @ 18 % p.a. from the date of booking, compensation of Rs.3 Lacs for mental and physical agony, and cost of Rs.25,000/- towards legal expenses.
7) The Complainant has attached the following documents in support of his complaint.
Delivery Challan dtd.22/08/06, Tax Invoice dtd.19/08/06, Invoice dtd.22/08/06, Cover Note of Insurance, Tax document dtd.21/08/06, Tax Rental Annual dtd.21/08/06, Payment Schedules, Letters dtd.27/10/06, 10/11/06, 20/11/06, 22/11/06, 29/11/06 of the Complainant addressed to Opposite Party No.3, Letter dtd.13/11/06 of Opposite Party No.3 to Bridge Stone Tyres dtd.17/11/06, Notice dtd.28/12/06 of the Advocate of the Complainant, Letter dtd.09/01/07 of the Opposite Party to the Complainant, Tax Invoice dtd.15/09/06, Pre job card dtd.13/10/06, Tax Invoice dtd.13/10/2011, Tax Invoice dtd.10/11/06, Pre job card dtd.10/11/06.
8) The complaint was admitted and notices were served on the Opposite Parties. Opposite Party No.1 and 2 submitted their written statement jointly wherein they denied the allegations of the Complainant regarding the defective vehicle and specifically raised the point that the Complainant has purchased the vehicle (said car) from ADDIS Marketing who is not the authorized dealer of Tata Motors Ltd. It has been purchased under a loan scheme of HDFC Bank Ltd. and thus, it is clear case of second sale. Therefore, the warranty is not applicable. The Complainant has not made the said ADDIS Marketing, a party to this complaint, from whom the Complainant had purchased this vehicle.
9) It is pointed out that the issue is of tyres, improper wheel alignment and wheel balancing. The Complainant has not made tyre manufacturer as the party to this complaint. As already said the issues of wheel alignments & balancing are the problems of routine wear & tear.
10) The Opposite Parties have further pointed out that the Complainant has deliberately concealed and not produced the 1st free service job card. The 1st service job card dtd.15/09/06 and 2nd service job card dtd.13/10/06 clearly shows that the wheel rims were bent. This is the indication that the vehicle is running on rough roads, hitting a pothole at a speed which is not recommended for safe driving. Thus, the problems are due to rash driving, damaging the entire tyres and shock absorber system. The invoice dtd.15/09/06 shows that in a very 1st month of purchase the stay rod bearing bracket had to be replaced. This is the indication that the vehicle has hit a pothole or a speed breaker at a high speed.
11) The Opposite Party Nos.1 & 2 have pointed out clause 4 of the warranty as under “such parts of tyres batteries, electrical equipments, etc. not manufactured by us but supplied by other parties, this warranty shall not apply”.
Clause 6 : “This warranty shall not cover, normal wear & tear or any inherent normal deterioration of the car or any of its parts arising from actual use of the car or any damage due to negligent or improper operation or storage of the car. This warranty shall not apply to normal maintenance service like oils, and fluid changes, wheel balancing, etc. and consumables like fuel filters, and oil filters, etc. this warranty shall not apply to V belts, hoses, and gas leaks in case of air conditioned cars.”
12) The Opposite Parties have further pointed out the allegations are not supported by any laboratory report or expert opinion. It is the statutory requirement of Sec.13(l)(c), 13(l)(d) and 14(1)(a) of the CPA that the defect has to be certified by an appropriate laboratory.
13) It is further stated by the Opposite Parties that, the Complainant has refused the replacement of tyres and demanded the replacement of entire vehicle for tyres only. None of the service report/job cards support the theory of manufacturing defect. The wheel alignment and suspension was checked and the defects were rectified.
14) The Opposite Parties have also pointed out that the 1st servicing of the vehicle was done on 15/09/06 i.e. after 26 days of the purchase and the car has covered a distance of 5157 kms. The 2nd servicing was done on 13/10/06 and the distance covered was 10911 kms. within less than 2 months. This does not show any indication of manufacturing defect.
15) It was also pointed out by the Opposite Party that no inference can be drawn as just because there was more wear & tear of the tires of the vehicle, there was manufacturing defect. The defects mentioned by the Complainant were looked into by Opposite Party No.3 at the time of servicing. It is specifically mentioned by the Opposite Parties that the Complainant was satisfied after the last servicing and the same problems were not reported again. Finally the Opposite Parties have prayed that complainant be treated as per Sec.26 of the Consumer Protection Act, 1986.
16) The Opposite Party No.3 also filed its written statement wherein it has admitted that the vehicle in question was purchased from it on 19/08/06. The said vehicle was manufactured by TATA and it has given a warranty issued by the manufacturer i.e. TATA Motors. The Opposite Party has further stated that, whenever the vehicle was produced before it, during warranty, the vehicle was attended to the entire satisfaction of the Complainant. The complaint is regarding wheel balancing and wheel alignment. The same was attended to. In the second servicing, the work attended was in respect of a wheel rim, door lock adjustment and front suspension. In third free servicing on 21/11/06, the complaint was regarding suspension noise and tyre wear. The ball joint was replaced and wheel alignment was done. Thereafter, there was no complaint regarding the wheel alignment and wheel balancing.
17) The Opposite Party No.3 has vehemently denied that the vehicle had manufacturing defect. After the wheel alignment, trial was taken. The Complainant was satisfied with the performance of the said vehicle and he took the delivery of the vehicle.
18) Finally the Opposite Party No.3 also prayed that the complaint be dismissed with cost.
19) Thereafter, the Complainant filled an affidavit of evidence and written argument wherein he reiterated the facts mentioned in the complaint. Opposite Party No.1 & 2 filed their affidavit of evidence. Opposite Party No.3 filed written argument wherein it reiterated the facts mentioned in its written statement.
20) The Ld.Advocates of both the parties have given in writing that they do not want to argue the matter orally. Hence, the matter be closed for orders. Accordingly, we perused all the documents submitted by all the parties and our findings are as follows -
21) The Complainant has purchased Tata Indica Car No.MH/04/CT/1191 (hereinafter called the said car) form Opposite Party No.3 on 19/08/06. The tax invoice shows the price of the said car is Rs.2,85,712/-. The tax invoice dtd.19/08/06 in respect of this car contains terms and conditions. It bears the signature of Opposite Party No.3 but does not bear the signature of the Complainant.
22) As per the averment of the Complainant he found serious manufacturing defects in the said car immediately after the purchase. However, the Complainant has described these defects as a) Tyre wear, b) balancing of the car c) Wheel alignment d) Suspension. In order to prove these defects the Complainant have produced 5 letters dtd.27/10/06, 10/11/06, 20/11/06, 22/11/06, 29/11/06 addressed to Opposite Party No.3, the last 2 letters are addressed to Opposite Party Nos. 1 & 2. The 1st letter has been written approximately 2 months after the purchase of the said car. By this time the car has travelled more than 10,000 kms. The complaint is regarding wheel alignment, suspension and worn out tyres. However, this letter does not bear the acknowledgment of the Opposite Parties. These letters are written on the letter head of Pawan Synthetics. The second letter also describes the defect as wheel alignment and vibration when the car is driven at the speed of more than 80 km per hour. The Complainant has termed these defects as the manufacturing defects. This letter has been duly received by the Opposite Party No.3. In third letter the defects are the same. The other letters also repeated the complaint regarding the same defects i.e. wheel alignment, tyre wear, etc.
23) In the month of Nov., 2006, since the main complaint being of tyres, Opposite Party No.3 referred the Complainant to the Bridge Stone Tyres, the manufacturer of the tyres. This party (Bridge Stone) has given its report dtd.17/11/06 wherein the defect or complaint is of tyres as “one side wear on tyre. This indicates that the tyres were worn out at side. This is the report regarding the tyres. This party has requested to check the wheel alignment and suspension, bearings indicating that the tyres were worn out due to the wheel alignment, suspension and bearings.
24) The Complainant has given a notice through his Ld.Advocate stating the above defects and calling upon the Opposite Parties to replace the said car and provide non defective car to the Complainant. However, in the complaint in hand the Complainant has prayed for a new brand car or a sum of Rs.3,17,918/- with interest.
25) From the papers it is seen that the defects such as wheel alignment, wear of tyres, suspension, bearing and vibration at the speed of 80 kms. per hours, existed since 1st servicing of the said card. The Opposite Party No.3 has also admitted that it attended these defects and rectified them from time to time. However, these defects have recurred again and again.
26) From the servicing report and pre job card it is seen that the said car’s mileage is 10911 km. as on 13/10/06 i.e. the vehicle was used vigorously within a short span of less than two months. The complaint is filed on 19/06/07 i.e. after 10 months of the purchase of the said car. However, the Complainant has not mentioned the distance covered by the said car during the time (in 10 months of purchase of the car).
27) There is no expert opinion to show that the defects mentioned in the complaint are manufacturing defects. Therefore, only the Complainant’s averment cannot be taken as a substantial proof. There is no complaint regarding the engine, chassis, and main body of the said car except the defects mentioned above i.e. wheel alignment, bearing, suspension. Therefore, the prayer of the Complainant for new brand car or the sum of Rs.3,17,918/- which exceeds the price of the car, cannot be acceded to. Even his Ld.Advocate in his notice, has not asked for a new brand car but he has reasonably asked to provide a non defective car to the Complainant.
28) Therefore, in view of the above observations in our candid view, we think it just and proper that the Opposite Party No.2 should remove the defects from the said car by replacing the concerned parts with new ones and hand over the said car defect free specifically without any defect in wheel alignment, suspension and bearings, etc. The said car also should be free from vibration at speed of 80 k.m. per hour and above.
29) It is also seen that the said car is having a defects mentioned above right from the date of 1st servicing i.e. from 15/09/06 (within one month of its purchase). Therefore, this must have caused a mental and physical harassment to the Complainant and therefore, he deserves for the compensation for such harassment by all the parties.
30) Opposite Party No.1 & 2 are the manufacturers of the said car and hence, it is solely liable to remove the defects from the said car and provide the Complainant defect free said car. Hence, the order is as follows -
O R D E R
i.Complaint No.172/2007 is partly allowed.
ii.The Opposite Party No.1 & 2 are directed to remove the defects such as wheel alignment, suspension and
vibrations while driving the car No.MH-04-CT-1191 by replacing the parts with new parts jointly and/or
severally and hand over the said car defect free to the Complainant.
iii.The Opposite Party No.1 to 3 are directed to pay jointly and/or severally, a compensation of Rs.10,000/- (Rs.
Ten Thousand Only) towards compensation for mental & physical harassment and Rs.5,000/- (Rs. Five
Thousand Only) as legal expenses to the Complainant.
iv.Opposite Party No.1 to 3 are also directed to comply with the above said order within 30 days from the receipt
of this order.
v.Certified copies of this order be furnished to the parties.
