DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.137 of 03-04-2013
Decided on 19-08-2013
Dinesh Kumar S/o Ram Tirath S/o Des Raj R/o H.No.21406, St.No.5, Power House Road, Bathinda.
........Complainant
Versus
1.Tata Motors Ltd., 26th floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai, through its G.M.
2.Tata Motors Finance Ltd., S.C.F No.133, Rose Garden Complex, Goniana Road, Bathinda, through its Branch Manager.
3.SJS Motors, Opposite Dewal Textiles, Roorke Road, N.H.58, Daurala, District Meerut, Uttar Pradesh, through its Prop./Partner/Authorized Person.
4.Kalsi Motors, Near Doomwali Barrier, Village Doomwali, District Bathinda, through its Prop./Partner/Authorized Signatory.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Lalit Garg, counsel for the complainant.
For Opposite parties: Sh.Varun Gupta, counsel for opposite party Nos.1 & 2.
Sh.Ajitinder Singh Chahal, counsel for opposite party No.3.
Opposite party No.4 already exparte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that he has purchased one new heavy transport vehicle i.e. truck, made of Tata Motors Ltd. (opposite party No.1) bearing registration No.PB-03Y-9005 in the month of August 2011 to earn his livelihood from the opposite party No.3 with 18 months warranty from the date of purchase or 1,50,000 kms. against the defects in the material and workmanship, whichever is earlier. The complainant has obtained the loan from the opposite party No.2 for the purchase of the said truck. The amount of the said truck has been transferred by the opposite party No.2 from Bathinda to the opposite party No.3 and the said truck was hypothecated to the opposite party No.2 against the abovesaid loan and the entry regarding the same was entered into the registration certificate (R.C.). On 21.1.2013, the said truck started giving some problem, as such the complainant has taken it to the opposite party No.4, the authorized service centre of the opposite party No.1 at village Doomwali, Distt. Bathinda for checking, the job card No.JC-KalMot-BH-1213-001092 dated 21.1.2013 was prepared. After checking the said truck, the opposite party No.4 found its CWP set and other parts became defective, they replaced the same after keeping the said vehicle with it for about 15 days. The opposite party No.4 has demanded Rs.44,725/- after replacing the defective CWP set and other defective parts despite the fact that the said truck was well within the warranty period. The invoice No.KalMot-BH-1213-01187 dated 5.2.2013 was issued by the opposite party No.4 clearly shows the warranty of the truck in question has not expired as it has covered a mileage of 1,07,158 kms only. The complainant requested the opposite party No.4 not to charge any amount from him as the said truck was within the warranty but it did not pay any heed to his requests. The complainant also requested the opposite party Nos.1,3 and 4 telephonically, to refund the amount charged from him, but to no effect. Hence the complainant has filed the present complaint to seek the directions to the opposite parties to refund the amount of Rs.44,725/- alongwith cost and compensation.
2. Notice was sent to the opposite parties. The opposite party No.1 after appearing before this Forum has filed its separate written statement and pleaded that Tata Motors is India's largest company in the automobile sector and is widely acclaimed for its class and quality. The cars and vehicles manufactured at the plant of the opposite party No.1 are thoroughly inspected for the control systems before passing through the factory works for dispatch to the authorized dealers appointed on a 'principal to principal' basis for their sale. The said dealer is not an agent and has no authority to bind the company by any contract. The opposite party No.1 has taken the legal objection that the complainant is not consumer as defined under section 2(1)(d) under the 'Act' as the vehicle in question is being used for the commercial purposes in order to generate profit and has covered more than 1,07,158 kms till 5.2.2013 i.e. within the period of 19 months approximately, the extensive usage of the vehicle in question itself establishes that this is not normal personal usage. In this regard the opposite party No.1 has referred a number of authorities. The vehicle has run 1,07,158 kms, as such this is not a case of replacement of the vehicle. The vehicle in question was in running condition and being used by the complainant on regular basis, shows that there was no manufacturing defect in it. The complainant has not produced any expert opinion/documentary proof in the form of evidence from a notified laboratory to prove that the vehicle in question suffers from any such problems. The complainant has purchased the vehicle in question from the dealer of the opposite party No.1 on or around in the month of August, 2011 that requires mandatory service and replacement of specified components viz. air filter, fuel filter etc. at recommended intervals as mentioned in the operator's service book given at the time of sale, for smooth running and optimum performance. The vehicle in question at the recommended intervals is required for carrying out the mandatory free services, but the complainant has failed to carry out its schedules services as per the recommended service schedule. As per the information received by the opposite party No.1, the complainant was irregular in getting the recommended services done at regular interval. The complainant did not carry out the paid service at 63000 kms, 81000 kms and 99000 kms. The complainant has violated the Clause No.5 of the warranty terms. On the abovesaid vehicle the warranty was given to the complainant for the period of 18 months and 1,50,000 kms, whichever is earlier, subject to its terms and conditions. The complainant had brought the said vehicle on 21.1.2013 at 1,07,158 kms for running repair, he was duly attended by the opposite party No.4, it checked the said vehicle and found the operating fault in it and prepared the job card and done the repair work to his entire satisfaction, he took the delivery of the said vehicle being satisfied to the work done by the opposite party No.4 and issued the satisfactory note to this effect. The total amount of the repair was Rs.89,266/-, out of which the opposite party No.4 has not charged the amount of Rs.44,541/- under the warranty and the remaining amount was being charged from the complainant that was not covered under the warranty. The amount was rightly charged from the complainant towards the repairs of the vehicle in question under the terms of the warranty.
3. The defence of the opposite party No.2 was struck off vide order dated 31.5.2013.
4. The opposite party No.4 despite service of summons has failed to appear before this Forum. Hence ex-parte proceedings are taken against the opposite party No.4.
5. The opposite party No.3 after appearing before this Forum has filed its separate written statement and pleaded that the complainant has filed the earlier complaint against it (therein it was opposite party No.2) in C.C No.448 of 6.9.2012 was decided on 24.1.2013 against the service dealer CH Motors, GT Road, Bypass near Police Post, Amritsar and the same was well within the knowledge of the complainant. The complainant has purchased the vehicle in question on 1.8.2011, financed from the opposite party No.2 for the commercial purpose. The complainant has neither got serviced his vehicle from the opposite party No.3 nor has paid any such bill to it. According to his own averments, the complainant has got serviced the vehicle from the opposite party No.4 and paid the bill to it. The opposite party No.3 has been dragged into unnecessarily litigation. Thus the opposite party No.3 is not liable to pay anything to the complainant with regard to the said vehicle.
6. The parties have led their evidence in support of their respective pleadings.
7. Arguments heard. The record alongwith written submissions submitted by the parties perused.
8. The complainant submitted that he has purchased one truck bearing registration No.PB-03Y-9005 to earn his livelihood from the opposite party No.3 with 18 months warranty from the date of purchase or 1,50,000 kms. against the defects in the material and workmanship, whichever is earlier. The complainant has obtained the loan from the opposite party No.2 for the purchase of the said truck, the loan amount has been transferred by the opposite party No.2 from Bathinda to the opposite party No.3 and the said truck was hypothecated to the opposite party No.2 against the abovesaid loan and the entry regarding the same was entered into the registration certificate (R.C.). On 21.1.2013, the said truck started giving some problem, as such the complainant has brought it to the opposite party No.4 at village Doomwali, Distt. Bathinda for checking, the job card No.JC-KalMot-BH-1213-001092 dated 21.1.2013 was prepared. After checking the said truck, the opposite party No.4 found its CWP set and other parts became defective, they replaced the same after keeping the said vehicle with it for about 15 days. The opposite party No.4 has demanded Rs.44,725/- after replacing the defective CWP set and other defective parts despite the fact that the said truck was well within the warranty period. The invoice No.KalMot-BH-1213-01187 dated 5.2.2013 was issued by the opposite party No.4 clearly shows the warranty of the truck in question has not expired and the said truck has covered a mileage of 1,07,158 kms. The complainant requested the opposite party No.4 not to charge any amount from him as the said truck was within the warranty but it charged Rs.44,725/- despite his repeated requests.
9. The opposite party No.1 submitted that the complainant is not consumer as defined under section 2(1)(d) under the 'Act' as the vehicle in question has been used for the commercial purposes in order to generate profit and has covered more than 1,07,158 kms till 5.2.2013 i.e. within the period of 19 months approximately, the extensive usage of the vehicle in question itself establishes that this is not normal personal usage. As the vehicle in question has already run 1,07,158 kms. as on 5.2.2013, therefore it is not a case of replacement of the vehicle. Moreover there was no manufacturing defect in the said vehicle. The complainant has not produced any expert opinion/documentary proof to prove the defects in the vehicle in question. The mandatory services are required and replacement of specified components viz. air filter, fuel filter etc. at recommended intervals, as mentioned in the operator's service book given at the time of sale, for smooth running and optimum performance of the vehicle but the complainant has failed to carry out its scheduled services as per the recommended service schedule. As per the information received by the opposite party No.1, the complainant was irregular in getting the recommended services done at regular interval. The complainant did not carry out the paid service at 63000 kms, 81000 kms and 99000 kms. The complainant has violated the Clause No.5 of the warranty terms. The complainant had brought the said vehicle on 21.1.2013 at 1,07,158 kms for running repair, he was attended by the opposite party No.4, it checked the said vehicle and found the operating fault in it and prepared the job card and has done the repair work to the entire satisfaction of the complainant. The complainant took the delivery of the said vehicle being satisfied to the work provided by the opposite party No.4 and signed the satisfactory note to this effect. The total amount of the repair was Rs.89,266/-, out of the total repair amount, the amount of Rs.44,541/- was not charged under the warranty and the remaining amount was charged from the complainant that was not covered under the warranty.
10. The opposite party No.3 submitted that the complainant has filed the earlier complaint against it (therein it was opposite party No.2) in C.C No.448 of 6.9.2012 that was decided on 24.1.2013 against the service dealer CH Motors, GT Road, Bypass near Police Post Amritsar. The opposite party No.3 further submitted that the complainant has neither got repaired his vehicle from the opposite party No.3 nor has paid any such bill to it. According to his own averments, the complainant has got repaired the vehicle from the opposite party No.4 and paid the bill to it. The opposite party No.3 has been dragged into unnecessarily litigation.
11. The opposite parties have taken the legal objection that the complainant is plying the said vehicle for commercial purpose but no such evidence has been placed on file by the opposite parties to prove their version.
12. The opposite party No.1 admitted that the amount of Rs.44,725/- has been received from the complainant on account of the repair of the parts. The total bill was of Rs.89,266/-, out of it, the amount of Rs.44,541/- was not charged from the complainant. As per the operator's service book given to the complainant at the time of sale, for smooth running and optimum performance of the vehicle in question, the services were mandatory and replacement of specified components viz. air filter, fuel filter etc. at recommended intervals as mentioned in the operator's service book. The complainant was irregular in getting the recommended services done at regular interval, he did not carry out the paid service at 63000 kms, 81000 kms and 99000 kms. As such he has violated the Clause No.5 of the warranty terms. The complainant had brought the said vehicle on 21.1.2013 after running the vehicle for 1,07,158 kms for repair, he was attended by the opposite party No.4, job card was prepared and repair work was done to his entire satisfaction. The amount of Rs.44,541/- was not charged as these were covered under the warranty and the remaining amount was charged as the vehicle in question was out of warranty with regard to those parts. The opposite party No.4 has written a letter Ex.OP1/6 to the complainant. The relevant portion of this letter Ex.OP1/6 is reproduced hereunder:-
“You reported to our tass for your vehicle No.PB-03Y-9005 bearing chassis No.MAT447212BAF04366 on 21.1.2013 with the complaint of DIFF NOISY. Our observations regarding the vehicle are as mentioned as below:-
1)Crown wheel's seven teethes broken continuously.
2)Tail pinion all teethes broken.
3)CYL Roller Bearing Broken.
4)Taper Roller Bearing broken.
The based on above observation it can be concluded that the failure has happened due to mis-operating vehicle. This is not a manufacturing defect.
As our warranty policy and duly mentioned in your service book, we are unable to attend the vehicle under warranty as this is an operating fault.”
This piece evidence on the part of the opposite party No.4 is not supported with the report of any engineer that how this defect has occurred due to the mis-operating of the vehicle in question. Thus the opposite parties have failed to place on file any cogent and convincing reason to prove that these defects were out of the warranty and happened due to mis-operating of the vehicle in question. The opposite party No.1 admitted that the vehicle in question was sold with 18 months warranty from the date of purchase or 1,50,000 kms. against the defects in the material and workmanship, whichever is earlier. The defects occurred in the said vehicle after plying the same for 1,07,158 kms. The opposite party No.4, the authorized service centre of opposite party No.1 has charged Rs.44,725/- from the complainant on account of the repair of the parts without assigning any reason as per letter Ex.OP1/6. If the defects occurred due to the mishandling by the complainant, the onus to prove the same heavily lies on the opposite parties, but the opposite parties have failed to lead any expert evidence of any qualified engineer or mechanic, to prove their this version.
13. The opposite party No.3 has taken the objection that the complainant has filed earlier complaint against it i.e. C.C No.448 of 6.9.2012, decided on 24.1.2013 and the dispute is regarding the sale of the vehicle and the matter has already been decided by this Forum. A perusal of file shows the dispute was regarding the vehicle bearing registration No.PB-03X-9005 in C.C No.448 of 2012, whereas in the case in hand the dispute is regarding the vehicle bearing registration No.PB-03Y-9005, thus the dispute in the present case is regarding the different vehicle, so this objection of the opposite party No.3 is not tenable.
14. Thus in view of what has been discussed above there is deficiency in service on the part of the opposite party Nos.1 and 4 as they have charged the amount of Rs.44,725/- from the complainant, whereas the vehicle in question was well within the warranty period. During the warranty period it is the duty of the company to repair the vehicle in question free of cost.
15. Therefore in view of what has been discussed above this complaint is accepted with Rs.5000/- as cost and compensation against the opposite party Nos.1,2 and 4 and dismissed qua the opposite party No.3. The opposite party Nos.1,2 and 4 are directed to refund the amount of Rs.44,725/- with interest @ 9% per annum since deposit till realization, to the complainant.
16. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
17. A copy of this order be sent to the parties concerned free of cost and file be consigned for record.
Pronounced in open Forum
19-08-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
