IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 25thday of June, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 211/2018 (filed on 04-10-2018)
Petitioner : Dr. HariSankar,
S/o. K.S. Narayanan Nampoothiri,
Kalabhavan,
Kudamaloor P.O.
Kottayam.
(Adv. Jayakrishnan R.)
Vs.
Opposite Parties : 1. Tata Motors Ltd.
4th Floor,
Ahura Centre, 82 Mahakali
Carves, MIDC, Andheri East,
Mumbai – 400093
2) MK Motors,
Malankara Buildings,
Kodimatha,
Kottayam – 686039
Rep. by its General Manager.
(Adv. SibyChenappady)
3) Focus Motors,
Manipuzha Jn.
Nattakom P.O.
Kottayam – 686013
Rep. by its General Manager.
(For Op1 and 3,Adv. V. Krishna Menon, Adv. M.K. Jose and Adv. Prinson Philip)
O R D E R
Sri. Manulal V.S. President
Brief of the complaint is as follows:
Complainant is a doctor by profession and working at MedicalCollage hospital Kottayam. The first opposite party is amanufacturer of passenger vehicle and second and thirdopposite parties are authorized dealers of the first opposite
party. The complainant had purchased a Tata Tiago XZA(AMT)from the second opposite party on 28-2-2018 , which ismanufactured by the first opposite party. The vehicle wasdelivered to the complainant on 1-3-2018 and the complainant
had paid Rs. 6,50,033/- towards the on the road price of the saidvehicle. From the initial days itself, the vehicle has shown somemissing while on motion. There was also some unusual soundand vibration, while the gear automatically shifts, lack of pullingwhile compared to other cars of same brand. Complainant hadtaken the car to the second opposite party on 6-4-2018. Theservice personals of the second opposite party told that the gearis slipping, while it automatically changes and they hadregistered a complaint. The vehicle was delivered to thecomplainant on the same day stating that the complaint was dueto some software issue and the same was rectified and thefirst service was also done.
There was no change in the missing and the abnormal sound atthe time of automatic gear shifts and the complainant had againentrusted the vehicle with the second opposite party on 13-4-2018. They had replaced certain parts such as exhaust pipegasket .etc and delivered the vehicle 2 or 3 days after the date of
entrustment. As problem persisted, complainant contacted thecustomer care of the first opposite party and as per theirdirection vehicle was entrusted to the third opposite party on 21-4-2018. They informed the complainant that it was due to somesoftware problem and they had corrected the same and returnedthe vehicle on the same day. But there was no difference in thecomplaint and the complainant had again taken the vehicle to thethird opposite party on 25-4-2018 and they returned the vehicleafter 2 or 3 days stating that all complaints are cured.
As there was no difference the complainant had taken thevehicle to the third opposite party on 7-5-2018,1-6-2018,15-6-2018 and 18-6-2018 . All the times, the vehicle was entrustedwith the third opposite party for two or three days and they hadreturned the same stating that the complaint was cured. Theyeven had replaced the clutch of the vehicle as a part of theirattempt to rectify the complaint. Then the complainant againcontacted the customer care of the first opposite party and as pertheir direction the complainant contacted Pradeep, who is theservice manager of the second opposite party. The vehicle hadbeen taken by the said Pradeep on 5-7-2018 and he inspectedthe vehicle and found that the missing and other complaintsare due to some fuel pump issue. As instructed the vehicle wasagain taken to he second opposite party on 17-7-2018 and fuel
pump, filter pipes and fuel tank were replaced. Then only theabove said complaints of missing, abnormal sound and gear slipswere resolved.
It is averred in the complaint that missing and unusual sound ofthe vehicle was due to the manufacturing defect of the fuelpump and certain related parts. To resolve these issues thecomplainant had entrusted the vehicle with first and secondopposite parties for ten times and the vehicle was in workshopfor more than 25 days in the first 140 days of the purchase.
After that when the second service was due there startedanother unusual sound from the engine. The vehicle wasentrusted to the second opposite party on 11-8-2018 and “AMount and B mount “of the vehicle were got replaced and the
vehicle was delivered to the complainant stating that the defectswere rectified. But the defect was not corrected and the water isaccumulating in the boot of the vehicle. The complainant hadagain entrusted the vehicle with the second opposite party on 31-8-2018 and they replaced the A Mount again and changed thesealant and some rubber bushes in the boot and under body tocure the water accumulation and returned the vehicle after twodays. But instead of curing the unusual sound the second oppositeparty had screwed rubber mats in the metal body portionseparating the hood and passenger cabin in order to prevent theunusual sound creeping into the passenger cabin. It is reliably
learned that the vehicle has some manufacturing defect.
According to the complainant even though he had purchased thevehicle after paying Rs. 6,50,033/- he cannot enjoy the same andis unsafe to go for long drives due to its regular complaints. Hugeinconvenience was caused to the complainant due to thedefective vehicle and the complainant had hired auto rickshawand other means of public transport and had spent more than Rs.10,000/- in connection with the same.
It is alleged in the complaint that the first and second oppositeparty had willfully delivered a vehicle having certainmanufacturing defects to the complainant by suppressing thismaterial fact. The acts of the opposite parties amount todeficiency in service and unfair trade practice. Hence thiscomplaint is filed by the complainant praying for an order todirect the opposite parties to replace the vehicle with a brandnew vehicle or to refund Rs.6,50,033/- along with acompensation of Rs.2,00,000/-.
Upon notice opposite parties appeared before the commissionand filed separate version.
The first opposite party filed version contending as follows:
The complainant is not a consumer as defined in the consumerprotection act. This Commission has no jurisdiction toentertain the complaint. The warranty offered by the firstopposite party is subject to the terms and conditions of thewarranty as contained in the operators service book. The vehiclewas delivered after carrying out the pre-delivery inspection bythe dealer. All the cars and vehicles manufactured by the firstopposite party are marketed only after the proto type of thevehicle are being approved by the Automotive ResearchAssociation of India. All the vehicle manufactured in the plantof the first opposite party are put through stringent controlsystems, quality checks and test drives by the quality assurancedepartment before being cleared for dispatch to the market.
It is submitted in the version that the complaints alleged in para 2and 3 of the complaint are minor in nature and attended tothe satisfaction of the complainant. The complainant hadapproached the workshop of the third opposite party on 21-4-2018 alleging complaint of noise while shifting thegear in automatic mode. The servicepersonnel while conducting a test drive of the car alongwith the complainant did not notice any complaint asalleged. The complainant had thereupon taken the car tothe workshop of the third opposite party on 25-4-2018 forupdation of the infotainment software, checking the ratting in the right hand front door aswell as for checking the AC. The software was updated andfront right hand winder assembly play was corrected and the AC filling was cleaned. On 3-5-2018, the complainant once again approached the workshop of the third oppositeparty with the complaints of noise while shifting the gearwhile driving in the automatic mode. The servicepersonnel while carrying out the test drive along with thecomplainant did not notice or experience any suchcomplaint. On 13-6-2018.the vehicle was entrusted with the thirdopposite party alleging under body sound, suspensionnoise, and kinetic base plate check. On a thorough check upof the vehicle any complaint was noticed whatsoever asalleged by the complainant. Thereafter on 16-2-2018 thevehicle had been entrusted with the third opposite partyalleging complaint of noise from AMT gear box as well asless pick up. The third opposite party in consultation withthe first opposite party had as a gesture of good willreplaced the clutch kit free of cost and delivered thevehicle on 17-6-2018. It is submitted in the version thatafter 17-6-2018 whenever the complainant took thevehicle to the workshop of the second opposite party withany complain , such complaint were being minor in natureand attended under warranty to the satisfaction of thecomplainant. There is no deficiency in service or unfairtrade practice on the part of the first opposite party and thefirst opposite party is not liable to pay any compensation.
Version of the second opposite party is as follows:
The complainant is not a consumer of the second opposite partyunder the provisions of the consumer protection act. Whenthe vehicle was entrusted to the second opposite party forfirst free service on 6-4-2018 the complainant raised the complaints ofsecond gear shifting some times, door rattling noise, wiperblade not working and bonnet paint touch. Door rattling noise settings of doors weredone, wiper blade replaced, scheduled first service of thevehicle was also done by the second opposite party.
Thereafter on 13-4-2018 the vehicle was reported at secondopposite party’s service centre with the complaints of engineraising high, under body noise,LH side pulling and frontRH door rattling sound. At that time second opposite partycorrected the complaint of engine raising high, all under bodynuts were tightened, wheel alignment done and front RHdoor pad was also set. Thereafter the complainant visitedFocuz Automobiles service on six times. As perCRMDMS reports on 18-6-22018 clutch assembly wasreplaced. On 3-7-2018 vehicle was entrusted with the compliant of back fire sound from engine cabin side while driving.
While test driven by second opposite party, it was noticed thatsame complaint on three times and power losing also feltat the time of the sound. Though the secondopposite party checked the error code, under body and ignitioncoil but found all these parts are ok. Then the secondopposite party checked with replacing one by oneinjectors, common rail, throttle body, T map sensor,exhaust manifold and engine cabin wiring harness . But thecomplaint is not resolved. Then the second opposite partyforwarded dealer investigation report along with ECUscreenshot and service history to customer care manager onthe same day. On 5-7-2018 P.Haridas who is the customercare manager sent a reply to place order for parts forconverting DENSO make fuel pump to DELPHI make fuelsystem. After receiving parts from TATA, vehicle was reportedon 16-7-2018 and the second opposite party replaced the15 nos of parts under warranty and the complaint wasresolved and vehicle was delivered to the complainant on18-7-2018.
Thereafter on 11-8-2018 the vehicle was entrusted with secondopposite party for second free service with the complaints ofunder body rattle sound, wheel alignment , wheelbalancing and tyre rotation. In addition to second freeservice , for correcting under body rattling sound secondopposite party replaced engine A and B mount. Wheelalignment , wheel balancing and tyre rotation was alsodone. After that on 28-8-2018 the vehicle again reportedat second opposite party with complaints of mountingsound, belt sound, mileage low, under body sound, A C badsmell ,AC cooling low , steering tight, rear view mirrorfixing, check axle nut and dickey and platform water entry.
Second opposite party replaced engine A mounting and rearview mirror. Engine B &C mounting were torque, steeringbox and all under body nuts were torqued, AC filter cleaned ,spark plug cleaned and belt tension adjusted and deliveredthe vehicle on 1-9-2018. Again on 25-10-2018 thecomplainant visited the second opposite party withcomplaints of vehicle jerking, steering motor and ignitionkey side heat and service lamp glowing. For clear jerkingcomplaint, second opposite party did AMT calibration.Steering motor and ignition key side heat is normal andservice lamp was cleared and the vehicle delivered to thecomplainant on 29-10-2018.
It is submitted in the version that the second opposite party is nota necessary party in dispute and the complaint is bad for misjoinder of the parties.
Third opposite party filed version supporting the contention ofthe first opposite party.
Complainant filed proof affidavit in lieu of chief examinationand marked exhibit A1 to A17. Expert commissioner isexamined as Pw1 and C1 commission report markedthrough the Pw1. Opposite parties 1 to 3 filed proofaffidavit in lieu of chief examination and Exhibit B1 ismarked from the side of the second opposite party. Nodocumentary evidence on the side of the opposite partiesone and three.
On evaluation of complaint,version and evidence on record wewould like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service or unfair tradepractice on the part of the opposite parties?
Point number 1 and 2
There is no dispute on the fact that the complainant hadpurchased a Tata Tiago XZA(AMT) from the secondopposite party on 28-2-2018 , which is manufactured by thefirst opposite party. Exhibit A3 tax invoice proves that thecomplainant had paid Rs.5,83,497 to the second oppositeparty as consideration for the car. . Exhibit A1 photocopyof the R.C.Book proves that the said vehicle is registeredwith authorities and registration no. KL-5-AR 7773 wasallotted to the said vehicle from the authorities. The oppositeparties contended that the complainant is not a consumer inthe purview of the consumer protection act 1986.
Consumer” is defined under 2 (1)(d) of the Consumer Protection Act 1986 as a person who “buys any goods for aconsideration which has been paid or promised or partlypaid and partly promised, or under any system of deferred
payment and includes any user of such goods other than theperson who buys such goods for consideration paid orpromised or partly paid or partly promised, or under anysystem of deferred payment, when such use is made withthe approval of such person, but does not include a personwho obtains such goods for resale or for any commercialpurpose” or “hires or avails of any service for a
consideration which has been paid or promised or partlypaid and partly promised, or under any system of deferredpayment and includes any beneficiary of such service otherthan the person who hires or avails of the services forconsideration paid or promised, or partly paid and partlypromised, or under any system of deferred payment, whensuch services are availed of with the approval of the first
mentioned person, but does not include a person who availsof such service for any commercial purpose. In case inhand the opposite parties did not adduce any evidence toprove that the complainant had purchased the vehicle for acommercial purpose.”
More over the complainant hadavailed the service of the second and opposite party for themaintenance and periodical service of the vehicle. Hencewe are of the opinion that the complainant is a consumer ofthe opposite parties as envisaged in the provision of theConsumer Protection Act, 1986.
The first opposite party contended that this Commission has nojurisdiction to entertain this complaint. On perusal of Exhibit A3, we can see that the first opposite party sold the vehicle throughthe second opposite party who is carrying out their businessat Kodimatha, Kottayam and the complainant had availedthe service of the third opposite party who is carrying their business at Nattakom, Kottayam. Both the second and thirdopposite parties are doing their business at kottayam andthe vehicle was delivered to the complainant at Kottayamwhich are within the jurisdiction of this commission.
Therefore we are of the opinion that the complaint ismaintainable.
The specific case of the complainant is that the vehicle hasmanufacturing defect. Complainant in his affidavit woulddeposed that from the very inception itself, thevehicle had shown some missing while on motion, there wassome unusual sound and vibration , while the gear automaticallyshifts, lack of pulling while compared to other cars of samebrand. It is proved by A4 toA9 tax invoices and A9 to A17service history that the vehicle was repaired by the second andthird opposite parties.
It is stated by the second opposite party that the vehicle wassent on 6-4-2018 when the complaints of second gearshifting some times, door rattling noise, wiper blade notworking and bonnet paint touch were raised by the complainant. .
According to the second opposite party on 13-4-2018 correctedengine raising high complaint, all under body nuts weretightened, wheel alignment done and front RH door pad wasalso set It is proved by Exhibit B1 that on18-6-2018 clutchassembly was replaced. It is admitted in the version of thesecond opposite party that the DENSO make fuel pump wasreplaced with DELPHI make fuel system on 18-7-2018 as per thedirection of the first opposite party. Second opposite partyadmits that on 11-8-2018 for correcting under body rattlingsound second opposite party replaced engine A and B mount.
After that on 28-8-2018 second opposite party replaced engineA mounting and rear view mirror, engine B &C mounting weretorqued, steering box and all under body nuts were torqued, ACfilter cleaned , spark plug cleaned and belt tension adjusted.Again on 25-10-2018 for clear jerking complaint, secondopposite party did AMT calibration . It is evident from therecords and exhibit B1(a) that the all these repair works weredone when the vehicle has plied 7170 kilometres which wasafter 7 months from the date of purchase. It is pertinent to notethat out of the above discussed occasions the vehicle was entrusted5times with the second and third opposite parties to rectify thedefects regarding the gear shifting in the AMT mode andabnormal under body sound.
Complainant deposed in proof affidavit that the main complaintof the vehicle is that improper working of gear, unusual soundand vibration and low pulling which are due to manufacturingdefect. In order to prove his case complainant applied to get thevehicle examined by an expert and the same was allowed by thiscommission .Report of the expert was marked as C1. Pw1 who
is the expert commissioner reported that the vehicle issuffering from a lot of manufacturing defect. In C1 report theexpert has stated that the abnormal sound from gear box wasnoticed while shifting gear from 20Kmph speed to higher speed.And this is due to the manufacturing defect. . It is stated in thereport that the repair works done to the fuel pump and system, steering rack assembly and clutch were major complaints andthe same was due to the manufacturing defect. Pw1 woulddepose before the commission that normally these complaintswould not occur within the one or two years from the date ofpurchase.
On the other hand the opposite parties contended that the vehiclehas no manufacturing defect. On perusal of service historyproduced by the second opposite party we can see that from thefirst free service which was due on a mileage of 1809 thecomplainant demanded the rectification of complaint regardingthe gear shift mechanism. Moreover from the second visit ie on1092 kilometres complainant started complain regardingthe noise from under body of the vehicle. It is stated in thevehicle history that on 11-8-2018 for correcting under bodyrattling sound engine A and B mount is replaced in order tocorrect the noise. On 18-62018 at a mileage of 3785 clutch wasreplaced.. It is further evident from service history of thevehicle that on 17-7-2018 at 4874 kilometres the fuel pumpwas replaced.
Counsel for the first and third opposite parties relied on the decisionreported in AIR 199 SC 331. In this case Hon’ble apex courthas held that the evidence of an expert is advisory character andit is the duty of the expert to furnish necessaryscientific criteria for testing the accuracy of conclusion.Ongoing throughthe said decision it can be seen that facts of the case weredifferent. The said decision was rendered by the apex court inan appeal dealing with the offences under section 120B and 420 ofIndian Penal code.
MarutiUdyog Ltd. vs. Susheel Kumar Gabgotra&Anr., (2006)4 SCC 644, in which the Hon’ble Apex Court directedthe replacement of the defective part of the vehicle and set asidethe order of the Hon’ble High Court, giving directions forthe replacement of the vehicle. However in case in hand though
the defective parts were replaced by the opposite parties thecomplaints of the vehicle persisting.
Though the Pw1 who is the expert commissioner wasvehemently cross examined by the counsel for the first oppositeparty nothing is brought to discredit the C1 report.
Therefore, by floating such a vehicle having manufacturingdefect in the market, which was purchased by the complainantand those defects could not be rectified despite umpteennumbers of repairs, the opposite parties indulged into deficiencyin rendering service and unfair trade practices. For this reason,we hold that the first opposite party, by supplying a car sufferingfrom inherent manufacturing defects to the complainant haveresorted to unfair trade practice and their conducts are liable tobe treated as “deficiency of services”. Hence point number oneand two answered accordingly.
Point number 3
Since, the said car has some inherent manufacturing defects,therefore, providing service will not serve the purpose asbecause the issue may be of serious nature and may be ofcontinuous nature, which may need continuous service to beprovided to the complainant on several times. The acts andconducts of the opposite parties has caused tremendous mentalagony and harassment to the complainant. we are of theconsidered view that the complainant has suffered lot ofinconvenience and misery due to improper functioning of thevehicle right from the initial days of purchase. As no purchaserof a new vehicle would ever think that he would be going togarage to get the vehicle repaired so often even if the repairsmay be minor. If this has happened, the purchaser is definitelyentitled to receive some compensation for inconvenience andmental agony faced by him due to supply of a vehicle havingsome defects.
On a thoughtful evaluation of the above discussed evidence weallow the complaint and pass the following order
1. The first opposite party to replace the Tata Tiago XZA(AMTbearing registration no.. KL-5-AR 7773 with a brand newvehicle of the same description or in alternative shall pay₹5,83,497/- to the complainant within 30 days from the date ofthis order. On receipt of the amount the complainant shallsurrender the Tata TiagoXZA(AMT bearing registration no.. KL-5-AR 7773 to theopposite parties within three days from the date of receipt of theamount.
2. First and second opposite parties shall pay Rs.1,00,000/- tothe complainant as compensation for the act of deficiency inservice committed by them.
3. First and second opposite parties are also directed to pay₹2,000/- to the complainant towards cost of this litigation.
Pronounced in the Open Commission on this the 25th day of June, 2022
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Subhash K.S.
Exhibits marked from the side of complainant
A1 –Copy of RC book KL-05-AR-7773
A2 – Copy of insurance certificate
A3 – Copy of tax invoice dtd.28-2-18 issued by Tata Motors (subject to objection)
A3 series – Copy of tax invoices (3 nos)
A4 – Tax invoice dtd.06-04-18 issued by MK Motors
A5 – Tax invoice dtd.18-07-18issued by MK Motors
A6 – Tax invoice dtd.11-08-18issued by MK Motors
A7 – Tax invoice dtd.01-09-18
A8 – Tax invoice dtd.26-10-18issued by MK Motors
A9 – Tax invoice dtd.10-08-20
A10 –Copy of screenshot of the message dtd.13-04-18 (subject to objection)
A11-Copy of screenshot of the message dtd.21-04-18 (subject to objection)
A12 - Copy of screenshot of the message dtd.25-04-18 (subject to objection)
A13- Copy of screenshot of the message dtd.07-05-18 (subject to objection)
A14-Copy of screenshot of the message dtd.01-06-18 (subject to objection)
A15-Copy of screenshot of the message dtd.15-06-18 (subject to objection)
A16-Copy of screenshot of the message dtd.18-06-18 (subject to objection)
A17-Copy of screenshot of the message dtd.05-07-18 (subject to objection)
Exhibits marked from the side of opposite party
B1 –Copy of service history of vehicle KL-05AR7773
B1 (a) -Copy of service history of vehicle KL-05AR7773
Commission Report
C1 –Commission report of vehicle KL-05 AR 7773 by Subhash K.S. K.S.R.T.C. Depot Engineer, Kottayam KSRTC.
By Order
Assistant Registrar
