PRESENT: Sh.Parveen Kataria, Adv. for the Complainant.

         Sh.P.K. Kukreja, Adv. for OP No. 1 & 2.

           Sh.Rajesh Verma, Adv. for OP No.3.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant had purchased TATA Indigo (XL Classic) DiCOR Diesel Car, being manufactured by OP No.1 & 2, from OP No. 3, on 14.8.2007, for a total consideration of Rs.5,99,940/- plus insurance charges of Rs.17,820/-. As per terms & conditions, supplied with car in the form of Owner’s Manual & service Book, the warranty of car and parts thereof manufactured by OP No. 1 & 2 was for 18 months from the date of sale of the car, irrespective of the distance covered. On the recommendation of OPs, he even got the extended warranty for a period of 4 years by paying the requisite amount of Rs.3000/- - Rs.4000/-. It was alleged that on 17.8.2007, Mr. Arvind Sharma – one of the partners of Complainant firm had gone to Dehra Dun and the car had done only 330 Kms, when it got heated up and was taken to Oberai Motors, Dehra Dun, an authorized workshop of TATA Motors. The car remained there for two days i.e. 17/8/07 and 18/8/07 , but they did not remove the defects and rather, temporarily repaired it, so that it can be taken back to Chandigarh. Copies of job card are at Annexure C-3 & C-4. Thereafter, the car was taken to OP No. 3, who repaired it on 20.8.2007, with the assurance that there would be no problem in future. But even after that, the car used to heat up after every 15-20 Kms, for which the car was taken to OP No. 3 for 2-3 times and each time, the same was repaired without giving any job card. It was averred that the car was again taken to OP No. 3 on 3.9.2007, 4.10.2007, 29.10.2007 for repairs. Some adjustments were made on 3.9.2007 and 4.10.2007, but as the car was again not working properly and the same problem of heating up was there, so major repairs were carried out on 29.10.2007. It was submitted that on 27.10.2007, when Mr. Arvind Sharma was driving the car, the engine suddenly heated up and ceased, due to which the car stopped in the middle of road and another car from behind hit the car and due to this, there was damage to the car. Copies of the job cards are at Annexure C-6 to C-8 respectively. Inspite of several visits, the defect still remained there and the engine used to heat up. It was also averred that on 12.11.2007, when Complainant was visiting Yamuna Nagar, again the same problem arose, due to which, the car was taken to Metro Motors, an other authorized workshop of TATA Motors. They also were unable to rectify the defect completely and changed some parts & removed one part i.e. thermal plug, which controls the temperature and gave it to Complainant and told him to visit OP No. 3 at Chandigarh as that part was not available with them. The car remained in the workshop upto 13.11.2007. He enquired from OP No. 3, as well as from Hind Motors another dealer of TATA Cars, but the defective part was not available. Due to the aforesaid defect, the Complainant could not use his car and mostly had to hire taxi for visiting various station in connection with his business purposes. When inspite of number of visits to OP No. 3 - authorized dealer, as well as authorized workshops, they failed to rectify the defects, a legal notice dated 17.11.2007 was served upon the OPs, followed by a reminder dated 17.12.2007, but the same bore no fruit. The Complainant cannot get the engine opened otherwise he would lose warranty, but there has been no solution to his problem by OPs. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to refund the cost of the car as also the insurance charges along with 12% interest and costs or replace the defective car with new car of the same model, along with costs, besides compensation of Rs.1.00 lakh for supplying the defective car, taxi charges, legal charges and on account of causing harassment to the Complainant.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs No. 1 & 2, in their joint written statement, while admitting the factual matrix of the case, pleaded that the Complainant had purchased the vehicle in question from OP NO. 3 for earning profits and was not a consumer under the provisions of the Consumer Protection Act, 1986. It was pleaded that they had never recommended the Complainant to avail the extended warranty and had ever received any amount from the Complainant to that effect. Annexure C-3 & C-4, which were the job cards of M/s Oberai Motors, confirm the visits only and did not indicate that any repairs temporary or permanent were carried out. There was no problem of thermostat of the engine, as alleged and the OP No. 3 had handled the complaint of hose pipe of coolant, which was an independent part and could be easily replaced, if required, without effecting performance of the vehicle in question. There was no problem of heating up of the engine after coverage of 100 Kms or/and after coverage of 15-20 Kms. On 3.9.2007, the vehicle was taken to the Workshop of OP No. 3 after coverage of 1451 Kms and for availing the first labour free service. The vehicle was delivered back to the Complainant at 1.00 PM to the entire satisfaction of the Complainant. The Complainant discharged satisfaction note in favour of OP No. 3. On 4.10.2007, the Complainant sent his vehicle for checking of front wheel alignment after coverage of 3650 Kms. The vehicle was received by OP No. 3 at 11.52 AM and was returned to the Complainant at 1.00 PM to the entire satisfaction of the Complainant. Again on 29.10.2007, the vehicle was taken to OP No. 3 after coverage of 5244 Kms with complaint of leakage of coolant. The leakage of coolant problem was checked and removed. It was asserted that the Complainant was leveling false allegations that the vehicle went out of order and caused accident. In case of ceasing of engine, the defects could not be rectified within one day. The Complainant did not point out any complaint with regard to heating up of the vehicle.  While pleading that M/s Metro Motors had only changed the Water Pump free of cost, it was denied that any thermal plug was removed and that the said part was not available with the Dealer OP No.3 and M/s Hind Motors. In any case, Annexure C-9 (of Metro Motors) is not admissible. There was no problem in the vehicle which the OP No. 3 was to rectify, as alleged in the complaint. While admitting the receipt of legal notice, it was submitted that the same was suitably replied to vide Annexure C-14. It is clarified that the vehicle was neither newly launched vehicle, nor was suffering from any of the manufacturing defects. The vehicle is defect free and the Complainant has not paid any of the alleged amount of Rs.18,000/- as being falsely claimed by the Complainant. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      OP No. 3 in its reply, admitted that the vehicle in question, was sold by it to the Complainant, subject to the conditions of warranty on the terms & conditions contained therein. The vehicle was in the perfect condition and the same was perfect merchantable automobile which was without any defect, as alleged in the complaint. It was submitted that the Complainant got the extended warranty for a period of four years on his own will and desire. Perusal of Annexure C-3 & C-4 would show that no job work or demand repairs have been mentioned in the job cards. The vehicle came to the Workshop of OP on 20.8.2007 and accordingly, the job card was opened up as per the demanded repairs. Contents of Annexure C-5 would show that the vehicle had come for normal running repairs of the vehicle and was attended to most efficiently and effectively, as per the demanded repairs of the job card, under the conditions of warranty. False allegations have been leveled by the Complainant with regard to the vehicle, in order to gain wrongfully and to harass the answering OP. It was admitted that the vehicle came to the Workshop on 3.9.2007, 4.10.2007 and 29.10.2007 and accordingly, job cards were opened and the vehicle was duly attended to under the conditions of warranty most efficiently and effectively. On all these occasions, the vehicle had come for normal running repairs and there was no manufacturing defect in the vehicle. While denying the receipt of legal notice, all other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

5]      Parties led evidence in support of their contentions.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1, 2 & 3. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having purchased TATA Indigo (XL Classic) DiCOR Diesel Car manufactured by OP No. 1 & 2 from OP No. 3 on 14.8.2007, for a total consideration of Rs.5,99,940/- with a warranty of 18 months from the date of sale of the Car and that the Complainant also got an extended warranty for a period of 4 years by paying additional amounts to OP No. 3, have all been admitted. 

ii] The only dispute between the parties i.e. Complainant on the one hand and OPs on the other has been that as per the Complainant, the Car in question right from the date of purchase, was having operational problems e.g. it was getting heated up when it had covered only 330 Kms. The car was repaired several times i.e. on 17.8.2007, 18.8.2007, 20.8.2007, but the problem of the car heating up after every 15-20 Kms could not be set right. Subsequently, the Car was taken to OP No. 3 again on 3.9.2007, 4.10.2007 and 29.10.2007, for repairs, whereupon, OP No. 3 made some adjustments and when the problem continued to persist, some major repairs were also carried out on 29.10.2007. As per the Complainant, on 27.10.2007, when the Car was being driven, the engine was suddenly heated up and got ceased, due to which the car stopped in the middle of the road and the same was also hit from behind by another car. The car suffered damage as a result of the accident. The same problem arose on 12.11.2007, when the Complainant was visiting Yamuna Nagar and thereafter, the car was taken to M/s Metro Motors – an authorized Workshop of TATA Motors, who were also unable to rectify the defect completely and only changed some parts and especially removed one part i.e. Thermal Plug, which controls the temperature. The Complainant was asked to visit OP No. 3 at Chandigarh, for getting the part replaced, as the said part was not available with Metro Motors. Finally, when the Car could not be repaired even on 13.11.2007 by OP No.3, the Complainant served a legal notice on the OPs on 17.11.2007, followed by reminder dated 17.12.2007. As per the Complainant, he could not even get the engine opened, otherwise, he will lose warranty altogether, which he even got extended upto 04 years.

iii] The allegations of the Complainant have been denied by OP No. 1 and 2, saying that there was no problem with the thermostat of the engine, as alleged and OP No. 3 had only handled the complaint of hose pipe of coolant, which was an independent part and could be easily replaced, if required, without effecting performance of the vehicle in question. The OPs have further denied that there was any problem of heating up of the engine after coverage of only 15-20 Kms every time. The vehicle was taken to OP No. 3 after covering 1451 Kms for first free service and the same was returned to the Complainant to his entire satisfaction. The vehicle again came to the OP No.3 for checking of front wheel alignment after covering 3650 Kms. Again, needful was done by OP No.3. On 29.10.2007, the vehicle was taken to OP No. 3 after covering 5244 Kms with complaint of leakage of the coolant. The problem was removed immediately. It has further denied that M/s Metro Motors removed the thermal plug and that the same was not available with OP No. 3. As per this OP, M/s Metro Motors had only changed the water pump that too, free of cost and not removed or replaced the thermal plug.

iv] On the same lines, OP No. 3 has also denied all the charges leveled by the Complainant, saying that the vehicle in question had come to OP No. 3 only for normal running repairs and was attended to most efficiently and effectively. It is admitted that the vehicle came to the Workshop of OP No. 3 on 3.9.2007, 4.10.2007 and 29.10.2007 and accordingly, Job Cards were opened and the vehicle was duly attended to under conditions of warranty. It has denied any deficiency of service on its part and prayed for dismissal of complaint.

v]  From above detailed analysis of the case and after examining the pleadings, the evidence tendered and other documents on record, it is quite clear that the basic dispute between the parties is with regard to the existence of a manufacturing defect on account of heating up of the engine after even a short drive. Since the parties in question had an entirely different perspective on the issue, it was felt that only an expert report could clinch the issue. Therefore, the request of the Complainant who prayed that the car be sent to some expert for expert opinion regarding existence of manufacturing defect in the car, the same was allowed on 16.4.2009 and the car was permitted to be sent to the Director, Punjab Engineering College, Chandigarh, with a request to appoint a Committee of Senior Automobile Engineers and submit their expert report as to whether there was any manufacturing defect in the car or not. The report dated 26.5.2009 from Head, Department of Mechanical Engineering Department, Punjab Engineering College, Chandigarh was placed on record on 29.5.2009. The relevant extract of the said report is reproduced as below:-

“Please refer to your order dated 16.4.2009 received on 6.5.2009 by hand. The vehicle under question having Registration No. CH-04-A-9973, Engine No. 14D1COR05GSZW05338 and Chassis No. 609172GSZPA8157 and Model (Make) 1GOXLDICR Classic (INDIGO XL Classic) was inspected on 25.5.2009 at 11.00 AM by the Committee. The Car was test driven for 17 Km i.e. the reading before the test drive was at 25409 Km and after the test drive 25426 Km.

During test drive and inspection, it was observed that the engine was heated up after it was driven beyond 10 Km and that too without the load of air- conditioner. The needle of the meter on the dash board was near the danger zone. The vehicle was stopped for ten minutes and again driven back to Punjab Engineering College, and the needle of meter was near the danger zone again.

On enquiring from the Complainant, it was informed that the problem of heating up of the engine after driving through some distance is occurring from the next day of purchase of the vehicle.   

This problem is attributed to some defects in the engine which may be due to manufacturing defect, since there was no leakage of water/coolant, the required quantity of water/coolant is not reaching in the water jackets around the cylinder.”

From the aforesaid report, as received from the Punjab Engineering College, Chandigarh, it is quite clear that the Car in question was definitely heating up after it was driven beyond 10 Kms and that too without the load of Air Conditioner. One can very well imagine as to what will be the fate of the car in case it carried the load of Air Conditioner as well. It is also confirmed in the report that there was no leakage of water/ coolant, but still the required quantity of the water/coolant was not reaching the water jackets around the cylinder, which is once again a major defect in the Engine Assembly of the Car, which is nothing short of a manufacturing defect, as the same could not be removed even during the period of two years by the OPs.

vi] In the preliminary objections taken by the OPs in their written statement/reply, they have stated that the vehicle in question was being used for commercial purposes and, therefore, such a complaint cannot be entertained by the Forum. However, no proof or evidence has been tendered by the OPs in support of their averments. Further, there is already an affidavit on record submitted by Sh. Arvind Sharma, one of the Partners in the Company, stating that the said Car was purchased for the personal use of Partners of the Complainant Firm and it is not being used for any activity directly connected with the commercial purpose of earning profit. It is also not being used for hire, but only for the personal use of the Partners for visiting different places, friends and relatives. Therefore, the objections raised by the OPs in this regard are not tenable, as the Car in question was not being used for any commercial purpose for earning profit.

vii] Another contention of the OPs in their written statement/reply has been that the car had gone to OP No. 3 only for running repairs and not for changing any major parts or carrying out any major repairs/ replacement of parts and certainly, not for change of thermostat; whereas, the Tax Invoice dated 21.8.2007, issued by OP No. 3, clearly shows the replacement of following parts/ components: -

    a]  Gasket (Oil Pump) (TALBROS)

    b]  Oil Sump Gasket – 1 Thk

    c]  Other Item – 2

    d]  Gasket Oil Pump

    e]  Gasket Water Inlet Elbow

    f]  Sump Gasket – Renew

g] Thermostat Remove & Install – Renew Gasket

    h]  R/R Oil Pump Strainer

    i]  Cooling System Check for Leaks.

viii] The above Tax Invoice clearly shows that OP No. 3 had undertaken major repairs and replacements in the car. It is another matter that the Complainant was not charged for these replacements as the car was under warranty. But, that does not show or prove that the car was not suffering from any major/manufacturing defect. Even in respect of the expert report given by the Head of the Mechanical Engineering Department, Punjab Engineering College, Chandigarh, the OPs could not find any fault with the same, except saying during arguments, that the Committee was required to inspect and open up the engine, identify the exact defect and only then make a report and that the Expert Report was not acceptable in the present shape and form and that the case be referred to some other Govt. approved Automobile Research Laboratory and further, the inspection and checking of the vehicle was done in the absence of an authorized representative of OPs. The report, however, shows that Dr. V.P. Singh, who is Head of the Mechanical Engineering Department, holds a Ph.D Degree in Mechanical Engineering. The second Member is Sh. Sushant Samir, who is Lecturer in the said Department and the third Member Sh. Gopal Dass, who belongs to the Mechanical Engineering Laboratory of the College. Therefore, the Committee Members were fully qualified and competent to inspect and drive the car for some distance, monitor and supervise its working and operation and then make a detailed report; that is precisely what has been done by the Committee. There are no reasons to disbelieve or doubt the veracity of the expert committee report from a reputed Institution like Punjab Engineering College, Chandigarh, which is again a Government Institution, fully funded and controlled by Government of India, through U.T. Administration, Chandigarh.

ix]  The OPs in support of their case, have cited certain judgments/authorities, which are as under:- 

a] Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & Ors., IV (2009) CPJ 27 (SC).

b] Talagang Cooperative G/H Ltd. Vs. Vandana Sharma, IV (2009) CPJ 161 (NC).

c] Swaraj Mazda Ltd. Vs. P.K. Chakkappore & Anr., II (2005) CPJ 72 (NC).

d] Hind Motors (India) Ltd. Vs. Sh. Kushal Singh Thakur & Ors., Revision Petition No. 1163 of 2005, decided on 21.08.2009 (NC).

     The judgments/authorities quoted by the OPs in support of their case are not applicable to the present case, as the facts and circumstances of this complaint are quite different/distinct and can be clearly distinguished from the ones quoted in the said judgments. Therefore, even the judgments/ authorities quoted by the OPs could not be of any help to the OPs in the light of Expert Committee Report, which clearly brings out the manufacturing defect in the Car, which the OPs have failed to remove during the last 2 years or so and for which the Complainant had visited them numerous times, but with no positive results. Therefore, the existence of a manufacturing defect in the engine of the car stands proved, without even an iota of doubt.

7]      From the above detailed analysis of the entire case, it is our considered view that the present Complaint has a lot of merit, substance and weight and it richly deserves acceptance. Therefore, we accept the complaint and decide the same in favour of the Complainant and against the OPs.

8]      Keeping in view the above, the OPs, shall, jointly and severally, do the following:-

i] Replace the old TATA Indigo (XL Classic) DiCOR Diesel Car (2007 Model) with a new one with the same/equivalent brand and latest model in that category on payment of depreciation charges by the Complainant to the extent of 10% of the total original consideration of the old car i.e. Rs.59,994/- (10% of Rs.5,99,940/-) to the OPs. The OPs shall also furnish a fresh warranty of 18 months for the new car from the date of supplying the said car to the Complainant. The Complainant shall return the old car, along with R.C. and other relevant papers to the OP, at the time of delivery of the new car to him. 

ii] The OPs shall pay a compensation of Rs.1,00,000/- to the Complainant for causing harassment, a lot of inconvenience and financial losses to the Complainant Company, on account of selling it a car, which had an inherent manufacturing defect from day one, thereby creating a bundle of problems for the Complainant firm and putting it to financial losses as well.

iii] The OPs shall pay litigation costs of Rs.5000/- to the Complainant Company.

9]      The aforesaid order be complied with by the OPs within a period of six weeks from the date of receipt of the certified copy of the order, failing which, they shall pay the sum of Rs.1,00,000/- along with interest @18% per annum from the date of filing of present complaint i.e. 25.1.2008, till the date of realization, besides paying the cost of litigation at Rs.5,000/- and fully complying with the order as at (i) in the foregoings.

10]    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

16.12.2009