Assam

Dibrugarh

CC/2/2011

MD. SHAHNAWAZ AZIZ - Complainant(s)

Versus

TATA MOTORS - Opp.Party(s)

M. DUTTA

29 Dec 2017

ORDER

 

        The case of the complainant in brief is that the complainant purchased a Sumo Grand LXV of TATA from M/s Gargo Motors  Ltd., an authorised dealer at Tinsukia on 16.06.09 being vehicle No.AS-06/H-0863, Chassis No.465311BQZ902197 and Engine No.2.2L DICORO7 BQZJM01530 a diesel vehicle. The complainant after taking delivery of the vehicle at Tinsukia and on his way to Dibrugarh detected defect on the AC. So on the next date 17.06.09 he again went to the dealer OP No.3 at Tinsukia to rectify the defect of horn and AC. Accordingly, it was repaired and while returning from Tinsukia to Dibrugarh he found again RPM (speed) increasing very repeatedly. The complainant being highly dissatisfied with the performance of the vehicle again visited to the OP No.3 at Tinsukia on next date 18.06.09 the OP No.3 after verification informed the complainant that the entire problem was due to collection of water sedimentor and the whole problem can be solved by taking out the water and accordingly they have repaired the same and returned the vehicle. While moving to Tinsukia for first servicing the OP No.3 repaired the shock-absorber near the back door and also repaired water sedimentor but while returning to Dibrugarh the complainant again found sound in the body of the vehicle, the backdoor and  the fender was not functioning properly. On 09.01.10 the complainant once again visited to the place of OP No.3 at Tinsukia and informed about the defect, the OP No.3 asked the complainant to leave the vehicle for the day. On the next day the complainant received the vehicle after being repaired. While returning on 10.01.10 complainant noticed some problem in the break paddle and the speed of the vehicle was vibrating. The complainant again visited workshop of OP No.1 at Dibrugarh wherein defect in the break disc were noticed and was referred to OP No.3 at Tinsukia. Further, the problem of water sedimentor re-occurred. While on 10.02.10 the complainant visited for second service he complained about the problem of water sedimentor and inter cooler. The OP informed the complainant that it was due to bend in the water sedimentor and the inter cooler was damaged but actually they told him about the change of water cooler which was completely false. However, OP No.2 Deputy General Manager vide his letter dated 11.03.10 recorded the inconvenience caused to the complainant and also intimated the Area Officer, Guwahati to provide all necessary support. The problem of the vehicle continued since beginning causing the complainant with tremendous physical and mental harassment, financial loss for the act of negligence and deficiency in service by the OP. Having facing the above physical and mental harassment complainant wrote letter to OP No.1 and 3 about the various problem of steering defect, head light problem, body sound, horn, defect in RPM and wheel, improper service, defect in suspension along with innumerable manufacturing defect, but not received any reply from the OPs. The act of the OPs were out and out deficiency in service due to their negligence for which complainant had to suffer immense loss, torture, harassment and agony. Hence, the complainant filed this case with prayer to pass necessary order directing OP to replace the vehicle or pay Rs.6,43,500/- with interest, compensation of Rs.50,000/- for harassment and mental agony along with the cost of litigation.

 

     After registering the case, notices were  issued to all  the OPs.  The OP No.3 contested the case by filing written statement , evidence and argument. But the case against OP No.1 and 2 proceeded ex-parte yet they submitted their written statement and argument. OP No.3 in his written statement stated inter-alia that the case is not maintainable either in law or in fact. It is stated that all the problem mentioned by the complainant were attended by the OPs’ workshop at Tinsukia and job cards are filed as Document-1 and Document-2. The vehicle of the complainant was also attended on 09.02.10 for second servicing and brake pads were replaced as brake paddle was vibrating. During the second service the OP noticed that due to hit under the body by some external hard material the inter cooler, water sedimentor and fuel tank were damaged. The complainant then requested OP for insurance claim and accordingly, the OP gave an estimate vide dated 13.03.10. Finally, the vehicle was repaired through insurance claim on 17.04.10. as such, there was no question arise for false replacement of these parts. Two copies of job card filed and marked as Document No.3 & 4. However, there is no such record with OP that vehicle was attended on 15.02.11, 21.02.11 and 17.02.11 as mentioned in para- 14. The vehicle was attended by the OP on 07.02.177 and delivered on 09.02.11. During the course of replacement the OP attended head light problem, steering defect, suspension noise, bumper adjustment etc and delivered after rectifying all the complaints. Document -5 is the job card. The OP No.3 further stated that even after filing the instant case the complainant visited the workshop of OP on 08.04.11, 19.04.11 and on being  fully satisfied after repairing signed satisfaction note on 12.04.11 and the complainant has been regularly plying the vehicle till filing the written statement. Had there been any grievance or any negligence on the part of the OP the complainant would be never visited the workshop of the OPs at Tinsukia and signed satisfaction note. Document 6 & 7 are the copy of the job card and satisfaction note. There is no any deficiency in service or negligence on the part of OP and therefore, he is not liable to pay any compensation or replacement of the vehicle as prayed for. As there is no deficiency in service on the part of OP NO.3 he requested to dismiss this case against him.

 

    OP No.1 and 2 in their written statement which is available in the record stated inter-alia that this court has no jurisdiction to try this case U/s 11 (2) of the C.P. Act since the complainant purchased the vehicle in question from OP No.3 at Tinsukia and there is no any branch office nor they carry any business at Dibrugarh. As such, the Dibrugarh Forum has no territorial jurisdiction to adjudicate the present case. The complainant is bound to follow the owner’s manual  and service book, but as it is seen from the job card the complainant has misused the vehicle and neglected by violating the manual and service book. The complainant did not use the vehicle properly and due to inadequate maintenance and due to excess load of carrying capacity for which the vehicle required repairing from time to time. The complainant himself grossly violated the terms and conditions of warranty policy and cannot entitle the warranty benefit. The OP No.1 is the manufacturer of the vehicle having trade mark in the market and the complainant had taken delivery after being satisfied with the condition of the vehicle and its performance. He must have purchased the vehicle after proper verification, test drive from the dealers. The OP No.1 further stated that the vehicles are delivered to the dealer after carrying out pre-delivery inspection. The commercial vehicle manufactured by OP No.1 are marked only after being proved by Automotive Research Association of India in short ARAI. Hence, question of manufacturing defect of the vehicle does not arise. The allegation made by the complainant regarding manufacturing defect has to be proved by producing report of expert’s opinion from notified laboratory or experts which the complainant failed. The claim of the complainant are denied, false and unsustainable without any merit. There is no manufacturing defect in the said vehicle as such, OP No.1 and 2 prayed to dismiss the case against them.

 

 

     

In this case Complainant gave evidence by swearing affidavit and  exhibited as many as 36 (thirty six) documents in support of his case. On the other hand, OP No.3 examined one witness Sri Debojyoti Bordoloi, Manager, Gargo Motors and exhibited as many as 8 (eight) documents to rebut the case of the complainant.

 

Complainant and all the OPs submitted their written arguments.

 

      

          DISCUSSION,DECISION AND REASONS THEREOF:

Upon going through the evidence, documents and arguments advanced by both the parties it reveals that the complainant purchased a SUMO GRANDE LX2 vehicle from OP No-3 on 16.06.09. He received the vehicle around 7:30PM at Tinsukia and proceeded to Dibrugarh to his residence. While on the way he switched on the AC he found that AC was not working, but being  too night he did not return back. He went to the workshop of OP No.3 on 17.06.09 on the next day and OP No.3 attended the vehicle and repaired the AC and the horn. On the next day after getting repaired of the AC and the horn again on the way he found RPM (speed) increasing very repeatedly. So, he again on 18.06.09 visited the workshop of OP No.3 and same was corrected by OP No-3. The vehicle was running smoothly without any disturbance till the first servicing. The complainant went on 14.07.09 for first servicing of the vehicle wherein the shock absorber near the backdoor and the problem of water sedimentation were repaired. While returning back after getting first servicing there were some sound on the body and back door and also the fender was not functioning properly. As such, the complainant on 09.01.10 again visited the place of OP No.3 which were rectified by OP No-3. On returning from Tinsukia to Dibrugarh on 10.01.10 he noticed the problem of brake paddle and on speed vehicle was vibrating. So he again visited on the next date and the OP repaired the same. Thereafter, he went for the second servicing and OP repaired the water sedimentor and the intercooler. Thereafter, the complainant vide Ext-3 wrote to the OP No.1 on 20.03.10 against the inconvenience suffered by him and in reply to the above letter OP No.2 recorded the inconvenience caused to him and directed Area Officer, Guwahati to provide necessary support vide Ext-4. However, the problem of the vehicle continued which caused tremendous physical and mental harassment to the complainant for which the complainant filed the present case due to negligence and deficiency in service of OPs.

 

     Now the question arise as to whether the above contention of the complainant and the harassment suffered by him are sufficient to prove the inherent manufacturing defect of the vehicle-in-question to replace the same or to return Rs.6,43,500/- as alleged by the complainant ?

 

   The OP No.3 in their evidence admitted that they have repaired the problem of horn and with some minor problems as stated by the complainant vide Document No.1 i.e. on 14.07.09 in the first servicing. The OP also admitted that on 12.01.10 they have attended the car for the second servicing and repaired tyre rotation, bumper adjustment in clearing of air filter which are regular repairing in the second service. Thereafter, on 09.02.10 attended the vehicle for second servicing and replaced the brake pad and some external material of inter cooler, water sediment and fuel tank. Subsequently, the complainant requested the OP to prepare an estimate for insurance claim. As such, the OP NO.3 given an estimate on 13.03.10 and finally the vehicle was repaired through insurance claim on 17.04.10. Document No.3 and 4 are the job card of the said repairing. As regard to the repairing of the vehicle on 15.02.11, 21.02.11 and 17.02.11 there is no record of repairing the vehicle but on 07.02.17 and 09.02.17 the OP attended the headlight problem, steering defect, suspension noise, bumper adjustment etc.

 

    It is pertinent to mention here that complainant after taking delivery of the vehicle on 16.06.09 he found some defect in the AC and horn and as such, he on the next day i.e. on 17.06.09 visited the workshop of OP No-3. Again he alleged that on 18.06.09 he again visited to repair the RPM (speed) but there is no any documents to support the above contention. However, on 14.07.09 he visited the workshop for first servicing of the vehicle and his horn, shock absorber near the backdoor and problem of water sedimentation were repaired. Regarding repairing on 09.01.10 there is no such supporting documents but the OP vide Document No.2 stated that the complainant visited on 12.01.09 and the OP have attended the vehicle and repaired Check Seedler Arms, tyre rotation, bumper adjustment, cleaning of air filter were done vide Document No-2. Besides, it appears from the written statement of OP No.3 that the complainant requested him to prepare estimate for insurance claim and thereby OP No.3 prepared an estimate bide dated 13.03.10 and finally the vehicle was repaired through insurance claim on 17.04.10.Thus, it appears that the complainant must have not maintain the vehicle properly and dashed against somewhere for which he had to made insurance claim. The complainant requires mandatory service and replacement of  satisfied component i.e. air filter etc at recommended interval as mentioned in the owner’s manual and service book given at the time of purchasing the vehicle for smooth running of the vehicle. Whereas, the complainant failed and neglected to follow the guideline given in the owner’s manual and also caused accident for which vehicle was repaired through insurance claim. Hence, there are instances of fault and operational faults noticed. Normally a  vehicle manufactured by the OPs are marketed only after being approved by the Automotive Research Association of India along with certificate. All the vehicles manufactured in the plant are of the OPs are put through stringent control system, quality check and test drive by the Quality Assurance Department before cleared for despatch to the market. Besides, before delivery of the vehicle pre-delivery inspection is made. The complainant must have taken the delivery after pre-delivery inspection on being satisfied. Under the circumstances, the question of getting the vehicle manufacturing defect cannot arise. However, in exceptional cases there are some manufacturing defects which cannot be denied i.e. in rare case. However, the allegation made by the complainant cannot be termed as a manufacturing defect of the vehicle. From the complaint petition, evidence and where allegation is made it is found that those defects were minor defects which can be cured. The complainant purchased the vehicle on 16.09.09 and still the vehicle is running as per record till 16.06.11 the vehicle covered 62,680 kms in average the vehicle had covered 2611 kms which proves that the vehicle is in absolutely roadworthy condition except minor and running repairs which are required to be carried out due to regular, continuous and extensive usage of the vehicle. Besides, OP No.3 has remotely and swiftly attended the allegation and grievances reported by the complainant without any hesitation. In the case of Maruti Udyog Ltd vs. Sushil Kumar Gabgotra and others case  JT 2006 (4) SC 113, the Hon’ble Supreme Court held that  “The manufacturer cannot be ordered to replace the car or refund its price merely because some defect appears which can be rectified or defective part can be replace under warranty.” In view of the above it appears clear in this case that the defect appeared in the vehicle were rectified by the OP No.3 immediately and also replaced the parts. Hence, it appears that there is no inherent manufacturing defect in the vehicle and as such the question of replacement of the vehicle does not arise.

 

     The complainant filed this case against the OPs to replace the vehicle by a new vehicle for inherent manufacturing defect but in this respect the complainant did not produce any expert’s opinion in the  form of evidence from any notified laboratory to prove that the vehicle suffered from the manufacturing defect which cannot be cured. Section 13(1) (c) C.P. Act,1986 stated as – “Where the complainant allege the defect in goods which, cannot be determined without proper analysis or test of goods, the District Forum after obtaining a sample of goods, send it to appropriate laboratory with a direction that  such laboratory makes an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect.” The complainant submitted the allegation of manufacturing defect in absence of expert’s report. Hence, in absence of expert’s report he measurably failed to prove the case which deserved to be dismissed. Hon’ble National Commission in the case of Dr. K. Kumar, Advisor (Engineer, Maruti Udyog Ltd vs. Dr. A.S. Narayanarao and others (I (2010)CPJ 19 (NC)) it has been clearly mentioned that it is necessary of expert evidence to prove the manufacturing defect of the vehicle made in the complaint. Hence, absence of an expert’s report on behalf of the complainant are liable to be dismissed.

 

    Besides, complainant failed to made out any ground for  relief under the provision of section 14 of the C.P. Act, 1986. The onus lies on the complainant to show that to prove that defect of the vehicle lies due to negligence and deficiency of service. Whereas, in the instant case, there is no any deficiency in service to prove the manufacturing defect of the vehicle.

 

    So far jurisdiction is concerned, the OPs stated that there is no branch office of the OP at Dibrugarh nor they carry any business at Dibrugarh to file the case before the Consumer Forum at Dibrugarh. As such, there is no territorial jurisdiction of this Forum. From the evidence on record it is found that the complainant purchased the vehicle from OP No.3 at Tinsukia. The repairing of the vehicle in question and servicing were done at the workshop of OP No-3 at Tinsukia. Further, it appears that the OPs neither have any branch office nor carry any business at Dibugarh. Besides, as there is no any branch or business at Dibrugarh of the OP the complainant has not made any party of Dibrugarh. All the OPs are of Mumbai and Tinsukia. In Hindustan Motors Ltd vs. DRDA, III (2001) CPJ 268 where it has been observed that where the whole cause of action had arisen at Patna the OPs were neither residing nor carrying any business through a branch office at Bhabua. Payment for the card was made at Patna and car was also delivered at Patna. So, it was held that “as no part of cause of action arose at Bhabua, District Forum, Rohtaz had no territorial jurisdiction to entertain the complaint.” In view thereof no cause of action either in whole or any part has arisen at Dibrugarh. So this Forum lacks the territorial jurisdiction to adjudicate the instant case.

 

            In view of the above, this case is liable to be dismissed devoid of merit. Hence, this Forum hold that the case is dismissed.