PER MR PREM NARAIN, PRESIDING MEMBER This revision petition has been filed by Ms Reena Bessy, against the order dated 13.09.2013 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (‘the State Commission’) in First Appeal no. 547 of 2012. 2. The brief facts of the case are that the complainant/ petitioner purchased TATA Safari on 16th May 2007 for an amount of Rs.8,01,063/- from respondent no.2. The vehicle started giving trouble from the very beginning of its purchase, particularly the defect was in respect of emission of black smoke from the exhaust of the vehicle as well as less pulling power in the vehicle. The OPs repaired the vehicle as and when it was brought to the workshop. However, dissatisfied with the functioning of the vehicle, the complainant requested respondent no.3 being the agent of the manufacturer TATA Motors/ respondent no.1 for replacement of the vehicle. As no response was received from the OPs, the complainant filed the consumer complaint on 03.08.2009 before the District Consumer Disputes Redressal Commission, Kannur (‘the District Forum’). The District Forum vide its order dated 30.05.2012 allowed replacement of the vehicle or payment of cost of the vehicle and gave a clear finding that there were manufacturing defects in the vehicle. 3. Aggrieved by the order of the District Forum, the respondent no.1 TATA Motors and respondent no.3, i.e., K V R Dream Vehicles Pvt. Ltd., preferred an appeal no.547 of 2012 before the State Commission. The State Commission vide its order dated 13.09.2013 modified the order of the District Forum and ordered payment of 1/3rd of the invoice of the vehicle and Rs.5,000/- as cost of proceedings. 4. Hence, the present revision petition. 5. Learned counsel for the complainant has stated that there were serious defects in the vehicle right from the purchase of the vehicle. The vehicle’s engine was not performing well as it always emitted black smoke which was coming out of the exhaust of the vehicle and there was less pulling power in the vehicle and it was stated to be due to the defect in the Piston of the engine. The District Forum had asked an expert opinion from the Local Commissioner who gave his report on 26.04.2010. At the time of inspection, Advocates for both the sides as well as technical person from the side of OPs were present. The Commissioner has given a clear finding in the report that the vehicle had manufacturing defects. The gist of the report is as follows: When the vehicle was started and accelerated, it is seen that heavy excessive black smoke is coming out from exhaust pipe; Admitted by OPs that black smoke is coming out due to non-function of turbo charges, due to excessive collection of unburnt diesel in combustion chamber or may be due to some defects in fuel injunction system etc.,; Vehicle is not having sufficient pulling power. This may happen due to tear and wear of the piston rings and engine cylinders, engine gasket leakage tear and wear in inlet and outlet valve, non-function of turbo charges, non-function of cylinders; The brake system has automatically jammed; AC is not working properly; The engine is having unusual sound in an idealing speed.
6. On the basis of the above defects having been noted by the Local Commissioner, the District Forum ordered replacement of the vehicle or refund of the price of the car. The State Commission however, in the appeal filed by the OPs has ordered only 1/3 of the price of the car, to be paid to the complainant by respondent nos.1 and 3 for which there is no justification. The State Commission has not given any reasoning for reducing the amount of compensation. The fact is that the vehicle could not be driven properly and there was always one defect or the other. The Commissioner has clearly stated that the defects are of such nature which cannot be removed by repairing. Thus, the only solution for the defective vehicle was to replace the vehicle. As the OPs have stopped the manufacturing of this vehicle, the price of the vehicle be paid to the complainant. It was further stated by the learned counsel for the complainant/ petitioner that the vehicle was having intrinsic defects and that is why the company has stopped the production of the said vehicle. Learned counsel for the petitioner has stated that the job cards given at the time of repairing of the vehicle clearly state these defects. 7. On the other hand, the learned counsel for respondent no.1 has stated that a brand new vehicle was delivered to the complainant. The complainant did not take proper care of the vehicle and the vehicle suffered due to wear and tear as the vehicle was not properly maintained. Second, third and fourth free services of the vehicle have not been availed by the complainant and this itself proves the fact that the complainant was not taking good care of the vehicle and the vehicle was bound to face certain problems in its running. Learned counsel has referred to the judgment of this Commission in the case of Bhagwan Das Agarwal vs TATA Engineering and Locomotive Company Ltd., and Anr., (in R P No. 1927 of 2007) decided on 13.03.2009 in support of his argument. The relevant portion reads as under: “Yet it is noticed that since there had been no periodical servicing at regular intervals required, that followed eventually seizure of engine on 24.09.2003 which was fall-out for not adhering to the instructions contained in the warranty manual. Though instructions in the operator’s service book provided that the petitioner had to get regular servicing after run of 1000 kms., and thereafter every 5000 kms., and repeating it at every 10,000 kms, these instructions too were not followed and it seems that only after some problems were noticed in the engine, that the vehicle was brought to the service station and noticing all these features, the State Commission in our view rightly concluded that the seizure of engine of said vehicle was due to sheer negligence on the part of the petitioner who was not very much particular to follow instructions contained in the warranty manual and that also necessitated taking the vehicle to the service centre.” 8. Moreover, as and when the vehicle was brought to the dealer, the vehicle was repaired within the warranty period. The complainant never raised any issue of replacement of the vehicle or refund of the price. When after the expiry of the warranty the vehicle was repaired then the question of payment arose. Then the complainant started complaining about the manufacturing defects and filed a consumer complaint for replacement of the vehicle or for the refund of the price of the vehicle. The District Forum appointed the Local Commissioner who was an Advocate and not an expert in the motor vehicle engineering and therefore, the observations given by the Local Commissioner cannot be considered at its face value. The vehicle is with the complainant and must have been running properly. At the time of filing of the complaint, the vehicle had already run about 36,000 kms and it must have run more by now, therefore, it cannot be said that the vehicle was having any manufacturing defect. Had there been any manufacturing defect, the vehicle may not have run this much mileage. 9. Learned counsel for respondent no.3 has stated that he agrees with the arguments advanced by the learned counsel for respondent no.1. 10. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. The District Forum had appointed Local Commissioner to inspect the vehicle and togive his report under section 13 (1) ( c) of the Consumer Protection Act, 1986. The Commissioner in his report dated 26.04.2010 has given a clear finding that there were many defects which can be considered to be a manufacturing defect and were beyond repairs and required replacement of certain parts. The vehicle was inspected after it was repaired by the OPs and all the parties were present during the time of inspection by the Commissioner. If the OPs were not satisfied with the report of the Commission they should have objected before the District Forum or should have requested the District Forum to appoint an engineer/ technical expert to inspect the car and to give his report, therefore, the report of the Commissioner cannot be discarded on the basis of the fact that the Commissioner was not a technical person. Commissioner has concluded in his report in the following manner: “The counsel for the opposite party no.3 also given a work memo in which it is requested that to report about the total distance covered by the vehicle, which is already reported. Further report about the working condition of the vehicle which also already reported. It is further requested that, to report, details of defect and report. Whether it can be rectified by proper repair and service. In this regard, so far as the defect which I have reported it cannot be rectified by service and could be rectified only by either replacement of the parts or proper and affective repair of the system. It is also requested that to report about the repair, service and works done, condition of turbo charges assembly which I have already reported above. Lastly, it is also reported to verify the alleged defects of the vehicle can be occurred due to improper and unscientific usage and unauthorised service of vehicle. In this regard, improper and unscientific usage of the vehicle would not develop the alleged defects noticed in the vehicle and by perusing the service records, unauthorised service had not been affected till my inspection. Warrant is duly executed along with the work memo given by the parties”. 11. From the above report of the Commissioner, it is clear that the defects can be rectified only by replacement of parts or effective repairs. However, the OPs have not replaced the relevant parts during warranty period, therefore, the complainant had to file a consumer complaint as the defects persisted. As the vehicle could have been repaired by replacement of parts, clearly it may not be a case of total replacement of the vehicle. Therefore, the State Commission has not agreed with the order of the District Forum for total replacement of the vehicle or for refund of total price of the vehicle. On the other hand, it is true that there were serious defects in the vehicle which were not rectified for effective repairs and by changing defective parts, and therefore, the State Commission has awarded 1/3 of the invoice value. It is to be noted that though the Commissioner has observed that the defects reported by the Commissioner cannot develop due to not availing the free service by the complainant, yet the fact remains that free services by the authorised dealer is also a pre-requisite of warranty. Moreover, if the complainant has not availed the three free services, his claim for the replacement or otherwise seeking compensation for defects becomes unjustifiable in the light of the judgment of this Commission in the case of Bhagwan Das Agarwal vs TATA Engineering and Locomotive Company Ltd., and Anr., (Supra). However, the local Commissioner has confirmed serious defects in the vehicle as examined above, the complainant is definitely entitled to reasonable compensation. 12. Considering all these aspects in totality, in my view, in the facts and circumstances of the case, ends of justice would meet if an additional compensation of Rs.40,000/- is ordered to be paid to the complainant/ petitioner. 13. Based on the above discussion, the revision petition no.730 of 2014 is partly allowed and the order of the State Commission dated 13.09.2013 is modified to the extent that respondent nos.1 and 3 would pay Rs.40,000/- (Rupees forty thousand only) over and above 1/3rd of the invoice value of the vehicle as ordered by the State Commission. 1/3rd of the invoice value of the vehicle will be paid along with interest @ 6% per annum from the date of the order of the State Commission, i.e., 13.09.2013 till actual payment. The cost of litigation of Rs.5,000/- awarded by the State Commission is also maintained. 14. This order be complied with by the respondent nos.1 and 3 within a period of 45 days from the date of receipt of this order. |
