BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^th DAY OF JANUARY 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

1. To replace the defective car bearing registration No.KA-05-MZ-0341 with a car of same make and model that has no issued.
2. To reimburse the approximate losses incurred due to the bad mileage.
3. To pay a sum of Rs.5,00,000/- as compensation towards the mental agony suffered by the complainant and his family due to the deficiency in services of the OP and for selling a defective car with mala fide intention.
4. To grant such other reliefs as this court deems fit in the interest of justice and equity.

2. Brief facts of this case are as follows:-

The complainant is a consumer as under section 2(7) of the Consumer Protection Act 2019. The OP is a company incorporated under the Indian Companies Act 1956 and The OP No.1 (TATA Motors) and the OP No.2 (Key Motors) had represented to the complainant that they are involved in the business of sale of passenger cars and services respectively. The OP No.2 further represented that they are one f the dealers of the TATA Motors, and offered several advantages, including quality assurance, safety and a hassle free driving experience through their periodic vehicle servicing. Based on the representations, warrantees and assurances made by the OP No.1 the complainant purchased the TATA Nexon Petrol AMT car bearing registration No. KA-05-MZ-0341 and paid Rs.12,25,816.00 by way of cash and exchange of pre-owned car, to Concorde Motors on 27.04.2019. The complainant submits that, after the first month of using the car itself, the complainant noticed 2 major issued – “Engine starting problem and bad fuel economy”. Upon following up with the representative of OP NO.1, the complainant was told that the fuel economy will improve after the first 3 free services. So, complainant decided to have a ‘Wait and Watch’ policy. But in the meantime, the complainant was facing problems related to Engine Start quite regularly. Initially, neither of the OP was ready to accept it as a defect. But both the parties assured that they will thoroughly check if there is any issue with the battery, during the free service. After each service, the complainant was told that everything with the battery is fine. The dates of services are 28.08.2019, 08.07.2019, 15.11.2019, 15.10.2020, 06.04.2022. But the complainant had to face the problem related to Engine start quite regularly. It took several months of follow-ups and video recordings to make the OPs act on the issue. Complainant escalated the matter to service head, passenger vehicles TATA Motors, Mr. Ramesh Varadarajan. After Mr. Varadarajan intervented, the defective battery was replaced.

3. Even after replacing the battery, the complainant faces engine starting problem occasionally if not quite regularly. The complainant submits that, he is getting a mileage f mere 6.5 kms/liter in city limits and 14 kms/liter on highways. What is more disappointing is, the complainant is getting a mileage of 6.5 kms/liter when the complainant is the only passenger. The complainant believes that, if the car is driven with full capacity, the mileage will drop further. The mileage assured by the OP NO.1 at the time of purchase was 12-13 Kms/liter in city limits and 19-20 kms/liter on highways. The complaiant also submits that, he compared the mileages of other TATA Nexon Petrol AMT cars and came to know that those car owners are getting a healthy mileage of 13 Kms/liter in city limits and 20 Kms/liter on highways. So, the complaiant wants to bring to the court’s notice that the said car is giving 6-7 Kms/liter lesser than other TATA Nexons Petrol AMT playing on the roads.

4. Complainant brought the mileage issue to the notice of both the OPs at the time of each service. Initially, both the OPs assured that the mileage will improve after the car is driven few hundred kilometers. But the complainant didn’t notice any improvement. After the complainant escalated the matter to service head, passenger vehicles, Mr. Ramesh Varadarajan, the OPs decided to arrange for mileage test. But the mileage test was not conclusive in terms of finding the exact mileage as the methods used were NOT acceptable. During the mileage test, the OPs wanted the car to be driven 60% in city limits and 40% on highways to find the mileage in city limits. This method made No sense to the complainant. After complainant’s protest, the OPs agreed to drive the car in city limits only. After driving the car in city limits, both the parties measured the mileage using the methods suggested by the OPs. It was observed that the mileage was almost the same as reported by the complainant. Later, both the OPs assured the complainant that they will bring another TATA Nexon Petrol AMT along with complainant’s TATA Nexon Petrol AMT for mileage test to compare the mileage. It was decided that both the cars will be driven in tandem on the same city route and driving conditions for few kilometers. The complainant was convinced with this idea and agreed to it. The complainant wants to humbly submit before this Hon’ble court that, even after multiple follow-ups this exercise has not been done.

5. The complainant has invested his hard earned money of Rs.12,25,816.00/- towards the purchase of car and incurred unnecessary losses due to very bad mileage. The complainant had to curtail his travel plans many times owing to bad mileage. This has affected complainant’s life stule. It is further submitted that on the assurance given by the OP NO.1 that the said car will give a mileage of 12-13 kms/liter in city limits and 19-20 kms/liter on highways, the complainant had purchased the said car. Giving false assurances, the OP No.1 had cheated the complainant and sold a defective car/vehicle with a mala fide intention. The complainant submits that he and his family had to go through enormous amount of trauma due to the battery issue. During many medical emergency situations, the complainant couldn’t start the car due to battery issue. It is submitted that the acts of the OPs are gross negligence and deceit. Hence this complaint by the complainant.

6. On issue of notice to OPs, OP No.1 file their version. OP No.2 fails to file their version. In the version of OP NO.1, the OP No.1 i.e. TATA Motors Passenger Vehicle Ltd., (formerly a unit of TATA Motors Limited) a company incorporated under the law of India, is the renowned manufacturer of various types of passenger vehicles and is widely acclaimed for its class and quality. It is submitted that the vehicles manufactured by the OP No.1 pass through stringent quality checks and road trials before the actual commercial production starts and the vehicles are marketed only after being approved by the Automotive Research Association of India. The vehicles manufactured at the plant of this OP No.1 are also thoroughly inspected for control systems, quality checks and test drive before passing thorough factory works for dispatch to the authorized dealers appointed on a ‘principal to principal’ basis for sale of the vehicles.

7. The OP No.1 is ably supported by the excellent dealerships/authorized service centers like the OP NO.1, having excellent workshop setup for after sales servicing of the cars, which are manned by qualified and experienced personnel only. It is submitted that the customers of all passenger cars manufactured by the answering OP No.1 are provided services through a large network of around 119 authorized dealers, 245 Tata Authorized Service Centers (TASC), 219 Tata Authorized Service Points (TASP) and 222 Tata Authorized Service Outlets (TASO) workshops. The network of such workshops/service points is being continuously enhanced and widened in order to bring maximum and efficient services as closed to the customers doorsteps as far as possible. Presently, the answering OP NO.1 has such workshops in excess of 800 in numbers across the country. These workshops provide scheduled services, running repairs, major repairs, spare-parts support and even carry out accident repairs to the passenger cars and utility vehicles. It is stated that all dealer workshops have dedicated helpline for attending to any breakdown, thus providing assistance to the customers in distress situation and an all India 24*7 Toll free helpline is operational over and above the dealership helpline. Every procedure for service/check-ups is standardized and procedures are laid down for the service centers, workshops etc. for carrying out necessary services/check-ups/replacement as may be required. OP No.1 has carved a niche for themselves in the products as well as in after sales service across the country. The manufacturers of the cars and the cars owners are bound by the terms and conditions of the warranty policy applicable for the cars. At the outset, this answering OP No.1 denies all the allegations contained in the complaint, except those, which are specifically admitted hereinafter in this written statement, and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed.

8. Complaint filed by the complainant is an abuse of process of law and is not maintainable as the complainant has approached this Hon’ble Commission by suppressing the material facts. The same would be evident from the submissions/objections taken in the succeeding paragraphs below. That from perusal of the instant complaint, it would be observed that averments made therein, are vague, baseless and with malafide intent. The complainant has made misconceived and baseless allegations of manufacturing defect in the vehicle without relying on any expert report from a recognized and notified laboratory under sec.38 (2) of the Consumer Protection Act, 2019 and deficiency in service without any documentary evidence in support of the allegations made in the complaint. Complaint filed the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act as there is neither any unfair trade practice nor any deficiency in service being established against the OP, hence the averments and/or allegations made therein are frivolous, baseless and misconceived and the complaint is liable for rejection and the same may kindly be rejected in totalitly.

9. Complainant has purchased the car in question on or around 27.04.2019, and the car itself is a new vehicle, which requires mandatory servicing and replacement of specified components etc., air filter, fuel filter etc. at recommended intervals as mentioned in the owner’s manual and service book given at the time of sale, for smooth running and optimum performance. The OP No.1 states that the complainant had failed and neglected to follow the guidelines given in the owner’s manual, as recommended for smooth and maximum performance of the car in questin viz. correct operating procedures – do’s and don’ts for maintenance and performance of the car. OP No.1 relies on the terms and conditions of warranty of the car in question, owner’s manual and service book and craves leave to refer the relevant extracts of the terms and conditions, limitations, owners service book and user manual at the time of hearing. It may be noted herein that for effective maintenance and smooth running of the car, every customer has to carry out the mandatory recommended services at regular intervals at the authorized service centers/workshops of the OP No.1.

10. As per the service schedule of the car in question, the complainant was supposed to bring the subject car at the recommended intervals as mentioned in the owner’s manual and service book for carrying out the mandatory free services, however the complainant had failed to carry out scheduled services of the car as per the recommended service schedule. A table for recommended service schedule

of TATA Nexon is:

Record of Services to be Performed

The complainant has not produced any records, so as to show that the complainant had regularly serviced the car, as per the recommended service schedule.

11. As per the service history of the car available with this OP, the complainant has failed to report his vehicle for 3^rd free service which was due on 27.04.2020, however the complainant has delayed on his part and brought the vehicle for servicing on 15.10.2020 with a delay of more than 6 months. Thereafter the complainant has missed the 4^th, 5^th, and 6^th servicing and reported the vehicle for repairs on 10.11.2021 after a gap of 1 year. Further, the vehicle has been parked for extended period of time and used very less which has led to the complaint of battery. The aforesaid details clearly show that the complainant failed to maintain the car as per the recommended schedule. The observations recorded by the service advisor on the job cards and steps services, which required to be attended for improper maintenance of the car.

12. Further, as per the recommended service schedule, given in the owner’s manual and service book, which amounts to agreed terms of contract, the owner of the car is advised to follow certain guidelines for smooth and maximum performance of the car. In this case, there were instances of maintenance faults and operational faults noticed by the OP No.1 during free servicing as well as on paid services when the complainant was advised to follow the instructions given in the owner’s service book and manual for smooth and maximum performance of the car. It is submitted that as per the clause 1 of the warranty applicable for the subject car, the warranty shall be limited for 24 months from the date of sale, subject to fulfillment of other terms and conditions of the warranty. The OP No.1 relies on the clause 5 of the terms and conditions of warranty, which states as – “The warranty shall not apply if the vehicle or any part thereof repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than out sales or service establishments, our authorized dealers or service centers or service points in any way, so as, in our judgment which shall be final and binding, to affect its reliability nor shall it apply if, in our opinion which shall be final binding, the vehicle is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us or such services prescribed in our Owner’s Manual and Service Book and not carried out by the buyer through our sales or service establishments, our authorized dealers or service centers or service points.” In view of improper maintenance and servicing of the car, the warranty ceases to exist and the complainant cannot claim any benefits under the warranty.

13. It is submitted that the car, purchased by the complainant is a well established product in the market and over a period of years, the consumers are using the product and the complainant had taken delivery of the car, after being satisfied with the condition of the car and its performance. It is submitted that the said car was delivered after carrying out of Pre-Delivery Inspection (in short, PDI) by the dealer. In this regard, it is pertinent to state that all vehicles manufactured by this OP No.1 are marketed only after the prototype of the car being approved by the Automotive Research Association of India (in short, ARAI). All the cars manufactured in the plant of OP No.1 are put through stringent control systems, quality checks and test drives by the quality assurance department before being cleared for dispatch to the market. Every car manufactured at the plant of OP NO.1 undergoes various quality control tests till the assembly line and thereafter it is made ready for dispatch. It s pertinent to state that this OP s “ISO TS/16949” certified, which is the international standard for quality systems for all the automotive companies and this international standard specifies requirements for a quality system where an organization needs to demonstrate its ability to consistently provide product meeting customers satisfaction and applicable statutory and regulatory requirements. Further, it is stated that after being dispatched to the authorized dealers of the OP No.1, the said dealers carry out Pre-Delivery Inspection (PDI) of all new cars before selling it to customers as per the standard check-list. Further, whenever any car reports to a workshop for scheduled services or for any repairs, the complaints/grievances of the customer are recorded in the job card, which do not imply admission of any defects in the car, but a mere representation of the customers grievances on the said car. Thereafter standard checks are carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job-card. It helps the concerned workshop to provide necessary consultancy/advise regarding the condition of the car to the customer. The car is checked at the workshop by the Quality Inspector (Q.I.) and by Diagnostic Expert cum Trainer (DET) during pre and post repair to ensure quality workmanship. The Service Advisor of the workshop who interfaces with the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the car after every service/repairs to the entire satisfaction of the customer. The car as attended by this OPs dealers/service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the car. Hence there cannot be any complaint of deficiency of service against this OP No.1 by the complainant and the complaint deserves to be dismissed with cost.

14. The complainant has filed this baseless complaint alleging problems in the car without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject car suffers from the problems as alleged, or to establish any defect in the car in question. That, section 38 (2) (c) of the Consumer Protection Act, 2019 states as “If the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, (the District Commission shall) obtain a sample of the goods from the complainant, seal it and authenticate it in the manner as may be prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory to make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Commission within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by it”. This OP No.1 submits that the allegations of the complainant in respect of problems in the car in absence of an expert report, miserably fails and the instant complaint deserves to be dismissed. The OP No.1 herein relies on the judgment of the Hon’ble National Commission in the case f Dr. K. Kumar Advisor (engineering), Maruti Udyog Ltd. vs Dr. A.S. Narayana Rao & Anr. [I (2010) CPJ 19 (NC)] for the necessity of expert evidence to prove the submissions of manufacturing defects in the car made in the complaint.

15. The complainant has purchased the car on or around 27.04.2019, from an authorized dealership of this OP, and the said vehicle till 7.04.2022 has covered around 10,142kms and it manifests that the vehicle in question within a period of 35 months, had covered 289 kms (approx.) per month. The said car is in absolute roadworthy condition and the jobs carried out on the car are minor and running repairs, which were required to be carried out due to regular, continuous, extensive and faulty usage of the said car. This OP has been prompt and swift to attend to the alleged grievances reported by the complainant under the warranty as and when reported. In the case of Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra & Anr. (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 defects appears which can be rectified or defective part can be replace under warranty. In view thereof, the complainant seeking for replacement of the car is contrary to law and is untenable. The relationship that exists between the OP No.1&2 is on ‘prncipal-to-principal’ basis. It is submitted that the answering OP No.1 cannot be held liable for any independent act and /or omission, committed by the other OP. Thus, for the acts of one OP, another OP cannot be held vicariously liable. In this regard, reference may be taken from case of Indian Oil Corporation vs. Consumer Protection Counsil, Kerala & Anr. (1994) 1, Supreme Court Cases 397, whereby the Hon’ble Supreme Court observed that reliance has to be placed on the circumstances, documents and conduct of parties to prove that eh relationship of the parties is of ‘principal and agent’ or of one of ‘principal-to-principal’ basis. In the instant case on the basis of the facts of the case, it was held that the relationship of the parties is on ‘principal-to-principal’ basis.

16. The complainant has filed this baseless complaint alleging mileage problems in the vehicle without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject vehicle suffers from the problems as alleged or to establish any mileage problem in the vehicle in question. It is submitted that the mileage figures quoted by the manufacturer are as achieved under standard test conditions and thus the same mileage cannot be obtained under different conditions. The mileage figure quoted by OP NO.1 was based on the figured obtained through test conducted under the Central Motors Vehicle Rules by the ARAI, a government-affiliated body, and it cannot be equated to a false promise or false assurance given by OP No.1. Hence OP No.1 submits that the allegations of the complainant in respect of mileage in the vehicle in absence of an expert report, miserably fails and instant complaint deserves to be dismissed.

17. The complainant has filed A/E along with 7 documents marked as Ex.P.1 to Ex.P.7 and OP file their A/E along with 5 documents marked as Ex.R.1 to Ex.R.5. OP No.2 evidence taken as nil. Complainant filed written arguments.

17. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OPs?

ii) Whether complainant is entitled for the relief?

iii) What order?

18.  Our answers to the above points are as follows:-

Point No.1:- Affirmative.

Point No.2:- Partly Affirmative.

Point No.3:- As per the final order.

                      REASONS

19. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

20. On perusal of the documents it clearly shows that he complainant has purchased TATA Nexon Petrol AMT car at the amount of Rs.12,25,816/- on 27.04.2019. The said vehicle was given to service and during the service the complainant complaints about the fuel mileage of the vehicle to be very low comparing to the other vehicles of the same model and also that there is starting problem with the vehicle even after the replacement of the battery. The OP admitted to the fact that the complainant had approached with the above said problems to them during the service of the vehicle for which the OP also replace the battery with a new one.

21. The OP in the warranty – terms and conditions of the TATA Nexon Vehicle has mentioned that:-

i)    This warranty shall be for a period of 24 months from the date of sale f the car or a mileage of 75,0000 km whichever occurs earlier.

ii)  Our obligation under the warranty shall be limited to repairing or replacing, free of charge, such parts of the car which in our opinion, are defective, on the car being brought to us or to our dealers within the period. The parts so repaired or replaced shall also be warranted for quality and workmanship but such warranty shall be co-terminus with this original warranty.

3.  Any part which is found to be defective and is replaced by us under the warranty shall be our property.
4. As for such parts as Tyres, Batteries, Audio and / or video equipment (if any), etc. not manufactured by us but supplied by other parties, this warranty shall not apply, but buyers of the car shall be entitled to, so far as permissible by law, all such rights as we may have against such partis under their warranties in respect of such parts.
5. This warranty shall not apply if the car or any part thereof is repaired or altered otherwise than in accordance with out standard repair procedure or by any person other than from our sales or service establishments, our authorized dealers, service centers or service points in any way so as, in our judgment which shall be final and binding, to affect its reliability nor shall it apply if, in our opinion which shall be final and binding, the car is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us, or such services as prescribed in our Owner’s Manual are not carried out by the buyer through our sales or service establishments, our authorized dealers, service centers or service points.
6. This warranty shall not apply to the replacement of normal wear parts, including without limitation, spark plugs, drive belts, hoses, wiper blades, fuses, clutch disc, brake shoes, brake pads, cables and all rubber parts (except oil seal and glass run).

22. As per the warranty and terms and condition of the TATA Nexon Vehicle, the 4^th point which says that such delivery part as tier, battery, Audio.etc. which are not mentioned by TATA Nexon i.e. the OP but supplied by other parties, this warranty was not complied but the buyers of the car shall be entitled to so far as permissible by law of such rights as we may have against such parties under their warranties inspite of such parts. Here as the battery being not mentioned by the OPs and is complied by the other parties, OP has replaced the battery, the issue of not starting of the vehicle continues even after the replacement of the batteries. This shows that there is no deficiency in battery but there is problem with the manufacturing of the car. The Job card copy dated 11.10.2021 which is at Ex.R.3 shows that the car is given for the complaint on battery discharge and the Ex.P.2 submitted by the complainant which is the service slip dated 06.04.2022 issued by Key Motor Ventures Pvt. Ltd. clearly shows that the complainant has raised complaint on fuel mileage and also that even after replacing the battery there is starting problem with the car. The battery been replaced in 2021 and the complainant is facing starting problems still in 2022. Therefore the problem of mileage and the starting problem of the car shows that there is deficiency in the manufacturing of the car. This shows deficiency in service and Unfair Trade Practice by the OP. The OP holds warranty towards the car manufacturing and its defects. Hence the OP is directed to rectify the starting problem and also the mileage issue of the car. The OP is further directed to pay compensation of Rs.1,00,000/- to the complainant and Rs.10,000/- towards litigation charges. Hence we answer Point NO.1 & 2 accordingly. 

23. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

                                   ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OP is directed to rectify the starting problem and the mileage issue of the car within 30 days from the date of order.
3. OP is directed to pay a compensation of Rs.1,00,000/- and Rs.10,000/- towards litigation chares.
4. OP is further directed to pay the award amount within 30 days from the date of order failing which OP shall pay interest of 10% p.a. from the date of order till realization.
5. Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th day of JANUARY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;