PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the defective motor car sold to the Complainant. The facts of this complaint as stated by the Complainant are that M/s. Tata Motors are the manufacturers and M/s. Fortune (Opposite Party No.3) is the authorized dealer of Opposite Party No.1 & 2. The Complainant has made the payment through Opposite Party No.4 towards the cost of the car purchased by her. It is also alleged by the Complainant that the vehicle purchased by her is having the manufacturing defects in the car.
2) The Complainant has further stated that she purchased an Indigo-LX Diesel Euro II Car having Registration No.MH 04 BQ 3716 from Opposite Party No.2 and through Opposite Party No.3 for Rs.4,86,080/-. However, the delivery of the car was given to her by Opposite Party No.3 on 13/06/03 i.e. after 2 and half months from the date of making payment.
3) The Complainant has further stated that she had obtained a loan of Rs.4,50,085/- form ICICI Bank for the purchase of the above car. The EMI was of Rs.9,915/- per month. The sale invoice was dtd.09/06/03. Delivery note is showing date of delivery on 13/06/03. It is alleged by the Complainant that due to late delivery of vehicle, the Complainant had to pay the 1st installment even prior to the receiving the car which amounted to R.30,000/-. It is averred by the Complainant that this caused her mental agony.
4) It is further alleged by the Complainant that after few days of the delivery of the said car, there were several problem started in the car. Therefore, the Complainant wrote a letter dtd.18/07/03 requesting the Opposite Parties to replace the car as the said car was having following defect.
i. Starting problem.
ii. Air problem.
iii. Diesel supply not proper.
iv. Noise in engine.
v. Starter firing noise.
vi. Noise at the time of driving.
vii. Heavy water leakage in right side door.
5) The engineer kept the car for two days for repairs however, the same problems were still there. Defects were resurfaced. The car was taken to Opposite Parties for several times but the defects were not repaired inspite of replacement of several parts and inspite of repairing at the place of Opposite Party No.3 garage. The Complainant has attached the following job cards in order to establish that the defects in the said car were persisting inspite of repairs at several times.
6) it is also stated by the Complainant that during the period from 16/06/2003 to 22/06/06 she has paid to the Opposite Party Rs.1,06,818/- towards the repair charges. After having repaired the vehicle from time to time it did not become defect free. On being fed up with the such constant un-repairable defects she again wrote a letter dtd.23/03/06 to Opposite Party requesting to replace the said vehicle and refund the amount spent by the Complainant on the said vehicle but the Opposite Parties did not respond to her request.
7) The Complainant has added that she repaid the car loan in Jan., 05. The Complainant has prayed for the following reliefs –
a) The Opposite Party be directed to replace the said defective car with new defect free car of the same model.
or
b) The Opposite Party be directed to take back the defective car and refund the amount of Rs.4,86,080/- with interest.
c) Opposite Parties be directed to pay Rs.30,000/- to the Complainant towards the installment paid by the Complainant to
ICICI Bank towards the repayment of the loan, before the car was delivered.
d) Opposite Parties be directed to pay the amount of Rs.1,06,818/- towards expenses incurred by the Complainant for
the defective car with interest.
e)A compensation of Rs.5 Lacs for mental agony, etc. and Rs.50,000/- towards the cost of this complaint.
8) The Complainant has attached the xerox copies of the following documents alongwith her complaint. Sales invoice of the car dtd.09/06/03, Delivery Note dtd.13/06/03, Taxation document dtd.12/06/03, Accessory bill dtd.16/06/03, Insurance Policy, Car Identification Record Document dtd.27/05/03 from ICICI Bank, Table of monthly installments letter dtd.18/07/03 to Opposite Parties, Job cards dtd.18/07/03, 02/09/03, 06/10/03, 23/10/03, 12/11/03, 01/03/04, 15/04/04, 05/07/04, 08/10/04, 21/12/04, 14/03/05, 20/08/05, 24/05/06, 19/06/06 & 02/08/06. Receipts, Tax Invoice, Job Cards – 10/04/06, Sales Invoice dtd.09/06/03, Service Invoice 12/10/04, Labour Invoice dtd.12/10/04, Receipt dtd.22/06/06, Tax Invoice dtd.22/06/06, 26/05/06, Spare Invoice dtd.17/04/04, Labour Invoice dtd06/07/04, Invoice date invisible, Invoice dtd.19/01/04, 13/11/03. 03/09/03. 09/12/03, Tax Invoice dtd.19/09/05, Labour Invoice dtd.23/08/05, Tax Invoice dtd.23/08/05, Tax Invoice dtd.10/08/05, Invoice dtd.31/03/05, Proforma Invoice, Job slip dtd.02/08/06, Receipt dtd.23/02/04, Invoice ddtd.22/12/04, Accessory bill dtd.22/12/04, Letter ddtd.28/03/06, Letter from ICICI Bank dtd.10/01/05, Power of Attorney document.
9) The complaint was admitted and notices were served on Opposite Parties. Opposite Party No.1 & 2 filed their combined written statement. Inspite of service of notice of the complaint, Opposite Party No.3 & 4 did not appear before this Forum. Hence, an ex-parte order was passed against Opposite Party No.3 & 4 vide Roznama dtd.09/02/07. Opposite Party No.1 & 2 have denied the allegations made by the Complainant in her complaint and further specifically stated that the defects alleged by the Complainant is a day today maintenance due to normal wear & tear and due to rough use of the vehicle. The exhibits filed by the Complainant do not disclose manufacturing defects. The problems were of electrical accessories and were attended to & rectified from time to time and they were not covered under the warranty Clause 6 – “Warranty shall not cover normal parts arising form actual use of the car or any damage due negligent or improper operation or storage of the card. Warranty shall not apply to normal maintenance services like oil & fuel charges, wheel balancing etc. and consumables like fuels filters & oil filters etc. warranty shall not apply to ‘V’ belt holes, gas leak in A.C. cars. “Clause 4: parts of tyers, batteries, electrical equipment etc not manufactured by us but supplied by other parties this warranty shall not apply.”
10) The Opposite Party No.1 & 2 have further stated that the allegations in complaint are not supported by any lab report or expert opinion. It is contended that the onus is on Complainant to prove the manufacturing defect in the car. However, the Complainant has not given any expert opinion/report in this behalf & as contemplated under Sec.13(1)(c) & (d) of the Consumer Protection Act, 1986.
11) It is also alleged by the Opposite Party No.1 & 2 that the car is used for commercial purpose.
12) It is also contended by the Opposite Party No.1 & 2 that the car was purchased in 2003 & complaint is filed on 17/10/06 i.e. after more than 3 years. So it is time barred.
13) The Opposite Parties have further denied that the car was delivered late. In this regard it is submitted that the invoice dtd.09/06/03 and delivery is dtd.13/06/03. So there is no delay. The vehicle cannot be delivered unless there is a RTO registration & Road tax paid. The sale invoice is prepared after the date of receiving payment from ICICI Bank. If the said bank charged 1st EMI before the actual disbursal loan amount, for the same Opposite Parties cannot be blamed.
14) The Opposite Party No.1 & 2 have further stated that the defects in the car were reported on 18/07/03 as per the job card. These problems were promptly attended to. It is also alleged that the use of vehicle was excessive to what is recommended and the vehicle was brought for change of engine oil filters, wheel alignment. The Complainant has not pointed out that there was a manufacturing defect. The problem arose in the vehicle, were due to wear & tear caused by heavy use. The problems were promptly attended to.
15) The Opposite Party No.1 & 2 have further pointed out that during the period of 3 years the vehicle has covered 62360 kms. on an average of 55 Km. per day. This does not indicate that the said vehicle had a manufacturing defect. The Opposite Parties have stated that the Complainant is not entitled to any relief sought by her in the complaint.
16) After submission of the written statement of the Opposite Party No.1 & 2 the Complainant filed the written argument on 21/07/08, wherein she has reiterated the facts mentioned in the complaint. Here the point has been noted that the Complainant has not filed any affidavit of evidence. The Opposite Party No.1 & 2 have not filed their written argument.
17) Even in absence of affidavit of evidence of the Complainant, we heard the Ld.Advocates of both the parities and perused the above stated papers submitted by both the parties and our findings are as follows –
The Complainant has purchased the vehicle from Opposite Party No.4. The vehicle had been manufactured by Opposite Party No.1 & 2. Opposite Party No.3 is the authorized service center of Opposite Party No.1 & 2. Therefore, the Complainant is the ‘Consumer’ within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act. The vehicle in question i.e. Tata Indigo car having Registration No. MH 04 BQ 3716 was purchased vide invoice dtd.09/06/03 and the same was delivered on 16/06/03
18) The Complainant noticed the defects described by the Complainant on 18/07/03 i.e. immediately after 1 month and two days. The vehicle was taken to the Opposite Party No.3 for repairing the defects. The Complainant also wrote an elaborate letter to the Opposite Parties describing the defects and requesting the Opposite Parties to replace the alleged defective car. Thus, the Complainant has brought to the notice of the Opposite Parties about the alleged defective car.
19) The above facts clearly show that the Complainant knew that the car was defective on 18/07/03. This fact was brought to the notice of the Opposite Parties but as per the Complainant the Opposite Parties did not replace the car. This means that, at this point of time the Complainant accrued the right to file the complaint before the appropriate Forum. In other words the cause of action arose on 18/07/03, but the Complainant has filed this complaint on 16/10/06 i.e. after 3 years and 3 months. In this connection, the Complainant has averred in his complaint that “inspite of repeated requests and follow up the Opposite Parties have neither repaired nor taken any action to set right the defects to the satisfaction of the Complainant nor replaced the car. Therefore, the cause of action is continuing from the date of purchase till date.” “As a matter of abundant precaution, the Complainant is filing an application for condonation of delay so as to preclude the Opposite Parties from taking shelter under technical grounds of delay in filing the above numbered complaint.”
20) At first instance, as observed in para 19 above, the cause of action arose in 18/07/2003 when the Complainant found the vehicle allegedly defective and communicated the same to the Opposite Parties and also requested them to replace it. It is also seen from the job cards that the vehicle was repaired for 20 times till filing of this complaint and the vehicle has travelled more than 62000 Kms. till August, 2006. The Complainant has not mentioned about the warranty period and not produced the warranty document. Taking into consideration these facts it cannot be said that the cause of action in this case is continuous one.
21) Secondly, the Complainant has averred that she is making an application for condonation of delay. But there is no any application on record to show that the Complainant has applied for condoning the delay in filing this complaint. Even in the entire complaint, the Complainant has not given any ground explaining as to why the delay should be condoned.
22) From the job cards submitted by the Complainant herself, it is seen that the vehicle was used profusely running more than 62000 Kms. till August, 2006 i.e. before filing this complaint.
23) In prayer ‘C’ in para 17 of the complaint, the Complainant has prayed for Rs.30,000/- to be paid by the Opposite Parties to the Complainant. In this respect the Complainant has not produced any document as to when he paid this amount to the Opposite Parties. The invoice is dtd.09/06/2003. The vehicle was given to the Complainant on 13/06/2003. Under such circumstances the Complainant cannot claim Rs.30,000/- towards the installment of the loan from the Opposite Parties.
24) Taking into consideration the observations in para 18 to 21, there is a delay of one year and 3 months in filing of this complaint. The Complainant has not filed any delay condonation application requesting to condone the delay. The Complainant has not given any reason whatsoever as to why the above said delay in filing the complaint be condoned. Therefore, in our candid view the complaint is barred by limitation and hence, it is dismissed. Therefore, we pass the following order –
O R D E R
i.Complaint No.432/2006 is hereby dismissed as bared by limitation.
ii.There is no order as to cost.
ii Certified copies of this order be furnished to the parties.
