| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB)
CC No. 603 of 21-12-2011 Decided on : 27-04-2012
Bharat Bhushan aged about 38 years S/o Sh. Harbilas R/o Maur Mandi, Tehsil Talwandi District Bathinda. .... Complainant Versus
Tata Motors Ltd., (through its Chairman cum MD) Teen Hath Naka, Gyan Sadhana College Service Road, Thane, Maharashtra 400604. PASCO Motors (through its Proprietor), N.H. 21, Village Khabra, Opposite Solkhian Gurudwara, District Roop Nagar (Pb) Gobind Motors, Authorised Service Station, Near Radha Swami Satsang Bhawan, Bathinda Road, Rampura Phul, Tehsil Phul, District Bathinda (through its Proprietor). ..... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM Ms. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member
For the Complainant : Sh. Navneet Garg, counsel for the complainant For the Opposite parties : Sh. Manjit Dhamija, counsel for opposite party No. 1. Sh. Jagsir Singh, counsel for opposite party No. 2. Sh. Pardeep Sharma, counsel for opposite party No. 3.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that he purchased a truck from opposite party No. 2 bearing engine No. 11A62986491, Chasis No. MAT466404B5B02703, vide Invoice No. 6447 dated 18-02-2011 for a consideration of Rs. 18,70,000/-. The said truck was got registered with the registering authority i.e. DTO Bathinda vide R.C. No. PB-03X-7320. The complainant has purchased the said truck for the purpose of self employment and for earning his livelihood. The opposite party No. 1 is the manufacturer, opposite party No. 2 is authorized dealer and opposite party No. 3 is the authorized service station of opposite party No. 1. At the time of sale of said truck, the opposite party No. 1 & 2 have given the warranty of the vehicle as a whole for 18 months from the date of purchase or 1,50,000 Kms from the date of purchase and the warranty on the Cummins engine fitted in the said vehicle was two years from the date of purchase or 2,00,000 Kms. On 18-09-2011, there was some problem in the crown wheel (which is a part of the rear axle) and complainant availed the services of opposite party No. 3. The opposite party No. 3 replaced the crown wheel of the said vehicle but demanded Rs. 46,900/- from the complainant for the said job. The complainant told the opposite party No. 3 that the vehicle is within warranty period, they rejected his claim vide its certificate on the ground that the services of the vehicle were not done according to the service schedule. The opposite party No. 3 has also mentioned that services from 45000 to 54000 Kms are missing whereas no service was missed. The service of rear excel including crown wheel is to be done after 72,000 Kms. The opposite party No. 3 refused to deliver the vehicle in case of non payment of Rs. 46,900/-. Since the said vehicle was financed with Indus Ind Bank and he was to repay the installment, under compelled circumstances, the complainant has paid Rs. 46,900/- to opposite party No. 3. The complainant alleged that dismissing of the warranty claim and charging Rs. 46,900/- from the complainant is illegal, arbitrary, against law and facts. As per guide book, service of the crown wheel is to be done after 72000 Kms and the vehicle has run just 56950 Kms, so no service of the crown wheel has been missed by the complainant. The complainant further alleged that the missing of any service from the service schedule does not entitle the opposite parties to reject the warranty. The complainant made complaint to opposite party No. 1 on its toll free number and also got issued a legal notice in this regard, but to effect. Hence, he has filed the present complaint. The opposite parties filed their separate written statements. The opposite party No. 1 has pleaded in its written statement that the cars and the vehicles manufactured by opposite party No.1 pass through stringent quality checks and road trials before the actual commercial production starts and they are marketed only after being approved by the Automotive Research Association of India. The cars and vehicles manufactured at the plant of opposite party No.1 are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealer appointed on a 'principal to principal' basis for sale of the cars and vehicles. The relationship exists between the parties is on Principal to Principal basis. The opposite party No.1 cannot be held liable for any independent act and/or omission, committed by the other opposite parties. Thus, for the acts of the one opposite party another opposite party could not be held vicariously liable. The opposite party No.1 has pleaded that under clause 9 of the Warranty Terms & Conditions, the complainant is entitled to only those rights which are enumerated in the Warranty document. The complainant has filed this complaint alleging manufacturing problems in the vehicle without having produced any expert opinion/documentary proof in the form of evidence. The opposite party No.1 has pleaded that as per Clause No.5 of Terms & Conditions of Warranty, which is binding on the complainant as well as on the opposite parties. The warranty was rejected for improper maintenance, negligent servicing of the vehicle. The said vehicle was brought for servicing at opposite party No.3 and during its service, noisy crown wheel was found and the crown wheel was replaced. The defects in the crown wheel were occurred due to the improper handling and poor maintenance as the said vehicle was not brought for servicing on time and the complainant missed two service of the vehicle which were due on 45000 and 54000 Kms. The opposite party No. 2 in its written reply took preliminary objection that complainant is not consumer as the vehicle in question was purchased by him for commercial purpose as the complainant is running the business of transport. On merits, the opposite party No. 2 admitted the purchase of vehicle in question through it and the vehicle after thorough inspection and adhering to the qualitative norms was delivered to the complainant. The complainant has never approached the opposite party for any service after the sale of the vehicle. The opposite party No. 2 has pleaded that opposite parties have great respect and care for their esteemed customers and accommodate them in whatever way on the laid down norms and procedures. The opposite party No. 3 has stated in its written reply that the complainant visited the workshop of the opposite party No. 3 on 18-08-2011 with a complaint of problem in the crown wheel and the vehicle had run 59950 Kms upto 18-09-2011. The opposite party No. 3 has denied that the vehicle was under warranty. It has been pleaded that as per Condition No. 14 (ii) of the Terms and conditions of Warranty, it is clearly provided that “the Warranty will not be applicable if the vehicle which is not serviced by our dealer/authorized service station as per the service schedule prescribed in the OSB and as per OSB, the complainant was required to get the vehicle in question serviced on 3000 Kms, 9000 Kms, 18000 Kms, 27000 Kms, 36000 Kms, 45000 Kms, 54000 Kms, 63000 Kms, 72000 Kms, 81000 Kms and so on after every 9000 Kms upto 3,42,000 Kms to get the warranty as per the terms and conditions of the warranty, but the complainant failed to get the vehicle in question serviced on 45000 Kms and then on 54000 Kms and if any such defect appeared in the crown wheel, the complainant himself is responsible for the same who failed to get the proper service done and if he would have got the vehicle serviced on 45000 Kms and 54000 Kms as required in OSB, then the minor defect if any that had appeared in the crown wheel should have been removed but the same could not be removed in time due to default on the part of complainant resulting in problem in the crown wheel, as such the complainant was not entitled to any warranty. The opposite party No. 3 has admitted that the opposite party No. 3 changed the crown wheel and charged a sum of Rs. 46,900/- from the complainant but denied that the service of the real axle including crown wheel was to be done after 72000 Kms. The complainant himself is responsible for the defect appeared in the crown wheel due to non-servicing of the vehicle as required under the service schedule. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. The learned counsel for the complainant submitted that the complainant purchased the truck in question from opposite party No. 2 after availing loan from Indus Ind Bank Ltd., for self employment and earning his livelihood. The opposite party No. 1 which is an authorized service station of opposite party Nos. 1 has charged Rs. 46,900/- from the complainant for replacement of the crown wheel of the said vehicle whereas the vehicle is within warranty period. The opposite party No. 3 has rejected the claim of the complainant on the ground that services of the vehicle were not done according to the service schedule. He submitted that service of the rear axle including the crown wheel is to be done after 72000 Kms. The submission of learned counsel for opposite parties is that the complainant was irregular and negligent in servicing the vehicle as per the recommended service schedule. The complainant did not carry out 6th service at 45000 Kms and 7th service at 54000 Kms which is an admitted fact. As per clause 5 of the terms and conditions of warranty, the warranty shall not apply if the services prescribed in Operator's Service Book are not carried out at our sales or service establishments, our authorized dealer or their sub-dealers or service centres. The learned counsel for the opposite party No. 1 submitted that for the acts of the one opposite party, another opposite party could be held liable and in this regard he placed reliance on various authorities. He also submitted that in the absence of any expert evidence, the manufacturing defect in the vehicle cannot be assumed. In this regard, he referred various authorities. These are admitted fact that the complainant purchased Tata Truck which bears registration No. PB-03-MT-6495 from opposite party No. 2 on 19-02-2011 for a sum of Rs. 18,70,000/- vide Invoice Ex. C-2. The allegation of the complainant is that the opposite party No. 3 charged Rs. 46,900/- from him vide Job Card Ex. C-4 for replacement of crown wheel whereas he was entitled for its free replacement as the vehicle was within warranty period. As per the guide book the service of the crown wheel is to be done after 72000 Kms and the vehicle has run 56950 Kms. The pleading of opposite party No. 3 is that the complainant has violated the terms and conditions of the warranty, hence he is not entitled for free replacement of the part in question. He missed 6th service at 45000 Kms and 7th Service at 54000 Kms. The complainant has purchased the vehicle in question on 17-02-2011 vide Ex. C-2. According to Clause 1 of Warranty Terms and Conditions, the warranty for the vehicle as a whole would be 18 months from the date of sale of the vehicle or 1,50,000 Kms or 2,000 hours of operation whichever is earlier. The complainant got replaced crown wheel vide Ex. C-5 on 20-09-2011 when the vehicle had run 56950 Kms. Hence, at the time of replacement of Crown wheel the vehicle in question was within warranty period. The opposite party No. 3 has rejected the warranty claim for crown wheel vide Ex. C-6 on the ground of missing of services on 45000 Kms and 54000 Kms whereas the complainant has denied that any service was missing. A perusal of Ex. C-10 reveals that according to 6.4 Recommended – Oil and Lubricants the service of Rear Axle was required to be done when the vehicle had run 72000 Kms whereas the crown wheel of the vehicle has been replaced on 56950 Kms. If for arguments sake it be admitted that two services of the vehicle in question were missed by the complainant, even then the problem of noisy crown wheel cannot be attributed to the missing of the services of the vehicle in question. Hence, the complainant was entitled to free replacement of crown wheel since the problem in it had arisen during the warranty period of the vehicle in question and its refusal amounts to deficiency in service on the part of the opposite party Nos. 1 & 3. The objection taken by the opposite parties that complainant is not consumer as he is running the business of transport, is not tenable as the opposite parties have failed to prove this allegation by leading any cogent and convincing evidence. With utmost regard and humility to the aforesaid authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts. In view of what has been discussed above, this complaint is accepted against opposite party No.1 & 3 with cost of Rs.1,000/- and dismissed qua opposite party No.2. The opposite party Nos.1 & 3 are directed to refund the aforesaid amount of Rs.42,800/- to the complainant charged from him vide Ex. C-5. The compliance of this order be made by opposite party Nos.1 & 3 jointly and severally, within 45 days from the date of receipt of copy of this order.
Copy of this order be sent to the parties concerned free of cost and the file be consigned.
Pronounced 27-04-2012 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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