DATE OF FILING : 20-05-2013.
DATE OF S/R : 20-06-2013.
DATE OF FINAL ORDER : 25-09-2014.
Sri Prashanta Srimani,
son of Sri Madhusudan Srimany,
resident of village & P.O. Makardah Dongaghata, P.S. Domjur
near Makardah P.O., NA, District – Howrah,
PIN – 711409. ------------------------------------------------------------------- COMPLAINANT.
- Versus -
1. The Manager,
T.C. Motors Pvt. Ltd.,
situated at NH – 6, Salap More,
Beside Kolkata West International City,
District – Howrah,
PIN – 711403.
2. The General Manager,
TATA Motors Finance Limited,
1, Think Techno Campus Building A 2nd floor,
off Pokhran Road, 2 Thane West,
PIN – 400 601. And
having its registered office at
Nanavati Mahalaya 3rd floor,
18, Homi Mod Street, Mumbai,
PIN – 400 001.
3. The General Manager,
TATA MOTORS Limited,
One India Bulls Centre, Tower 2 A & B, 20th floor,
841, Senapati Bapat Marg, Jupitar Mills Compound,
Elphinstone Road ( West ), Mumbai,
PIN – 400 013.
4. The Branch Manager,
United Bank of India,
Domjur Branch, Domjur, Howrah,
PIN – 711 405. ----------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant complaint was filed by the complainant U/S 12 of the C.P. Act, 1986
wherein the complainant has prayed for direction upon the o.p. nos. 1, 2 & 3 to refund Rs. 2,13,624/- as described in schedule ‘B’ for purchase of the ‘A’ schedule car together with statutory interest and direction upon o.p. no. 4 to stop encashment of the A/c payee cheque issued in favour of o.p. no. 2 lying with the o.p. no. 4 being postdated cheque drawn by the complainant as mentioned in schedule ‘C’ and to pay Rs. 2 lakhs as damages and compensation together with litigation costs as the suit car being new TATA Venture having registration no. EX WB 12C/3944 has turned defective since after its purchase on 14-12-2012 with manufacturing defect of hard clutch, stiff steering having leaning tendency towards left and defective A.C. machine.
2. The o.p. no. 1 in their written version denied all the material allegations made in the complaint and contended interalia that due to rough and rash driving on the rough and bad condition road, the defects as alleged surfaced; that the driver is solely responsible for the same; that the entire problem surfaced for the inexperienced driver ; that the car does not carry any mechanical defect. So the complaint should be dismissed.
3. The o.p. no. 2 in his written version denied all the material allegations and contended interalia that there was no fault or negligence on the part of the o.p. no. 2 ; that the complaint has been filed only to avoid the payment of installment.
4. The o.p. no. 3 in his written version denied all material allegations contained in the complaint and contended interalia that the alleged defect was for the negligence and inadequate maintenance of the car ; that the car was of highest quality ; that the vehicle was not attended properly by the dealer and so there was no deficiency in service ; that no question of refund does arise. So the complaint should be dismissed.
5. The o.p. no. 4 did not file any written version. So the complaint was heard ex parte against them.
3. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
4. Both the points are taken up together for consideration. Admittedly the car being registration no. EX WB 12C/3944 was sold to the complainant on 14-12-2012. The o.p. no. 1 committed to provide X Ivory clour to the complainant on 08-12-2012. Instead, the complainant was forced to take delivery of a white colour car against his choice.
5. The argument put forward by the ld. lawyers for the o.ps. that they committed no deficiency in service or unfair trade practice in selling the suit car cannot hold ground for the following facts and circumstances :
a) Within 24 hours i.e., 15-12-2012 the complainant detected that the clutch is very stiff / hard to manipulate. It was not at all smooth; the driver found difficulty while changing the gears ;
b) The steering wheel always tends to take a left swing automatically during driving. The driver is required to apply much force to keep it straight by way of extra leaning to the right with tight grip.
c) The frustrated complainant took the car to the workshop of the o.p. on 15-12-2012. After much effort, the workshop mechanic assured the complainant that 80% of the steering defect has been removed and the rest 20% would be cured during plying. The workshop authority asked him to bring the car to the workshop on 17-12-2012 as 16th December was a Sunday.
d) Accordingly, the complainant placed the car in the workshop on 17th December. He was asked to take it back in the evening. In the evening when he visited, he noticed to his utter shock and surprise that the mechanic was busy in changing the clutch fittings. Soon he strongly objected, as it was a new car.
e) This is not the end. Further shock was in store for the complainant when on 20-12-2012 he detected that the A.C. of the car did not work. Soon the complainant took the car to the workshop of o.p. no. 1 when he was asked to leave it there for repairment. On his subsequent visit, the workshop authority narrated that the switch as well as some parts of the A.C. were already broken and required replacement. The complainant met Mr. Prokash Thakur, the sales manager of o.p. no. 1 who took the original job slip from him and supplied a photo copy of the same and requested him to take the car back on 21-12-2012.
f) On 21-12-2-12 the said sales manager called him at 12.30 p.m. and said that the car would be examined at 5 p.m. in presence of the o.p. no. 3. Unfortunately the said manager did not call the complainant in course of the day. When the complainant rang back, the manager did not receive the call. On the contrary, after two days the suit car was returned to the complainant with intimation the A.C. was changed and all the defects thoroughly removed.
g) On 11-01-2013 the suit car shot a new trouble. The defencial ( Housing ) of the car started generating huge sound. The complainant revisited the o.p. no. 1 workshop with the car. The concerned mechanic asked him to leave the car there as the defencial was broken and was in dangerous situation. The o.p. no. 1 workshop further requested him to take back the car after one week as the relevant spare part was to be brought from Pune, Maharastra. When the car was not returned even within 15 days, a complaint was lodged ( 1-17964243281 dated 15-01-2013 ) before Mr. Manoj Singh, Pune Head Office over cell phone.
h) The car was returned after 15 days. But the noise problem did not abate and continued as usual. So the complainant again lodged another complaint before Debashree Halder on 07-02-2013 with reference to the earlier complaint dated 15-01-2013.
i) On 28-02-2013 the brake padde of the got blocked ; on 08-04-2013 the pump of the car ceased to function ; on 15-04-2013 the pick-up cable ragged ; on 04-05-2013 the gas of the A.C. of the car has to be refilled though it was purchased 6 months back ; on 15-05-2013 the car suddenly halted on the middle of the High Way with a signal of ‘engine check’ with pick up failure; the fan meant for cooling the engine did not stop causing alarm to the riders. The car stopped at the middle of the high way rendering the lives of the riders in precarious condition.
j) For developing series of defects the car has posed a serious threat to the family members of the complainant. Ld. lawyer for the complainant submitted that none of the family members are willing to board the newly purchased car as they are panicked. What better instance of deficiency in service and unfair trade practice can be than the case at hand? The statements of the complainant are not fanciful rather validated by 9 job slips issued by the o.p. no. 1 workshop. Whatever be the lofty claim of the o.ps. that the best quality car was delivered to the complainant, nine to ten times entry of the car to the o.p. no. 1 workshop for removal of good many manufacturing defects in fact punctured the claim and such claim appears to be sonorous nothing. The car was delivered on 14-12-2012 and till April, 2013 it was placed in the o.p. no. 1 workshop intermittently. The catalogue of suffering of the complainant is enormous and no doubt it is a long list. The entire family of the complainant has lost faith on the newly purchased car. The conduct of the o.ps. has shaken the trust reposed upon the company. The allegation of bad maintenance is too fragile merit acceptance. The accident as alleged was with respect to the steel bumper guard fitted at the front of the car. The job slip issued by the o.p. no. 1 workshop reveals that the radiator had to be replaced. This cannot be congenital mechanical defect.
The o.ps. brought the matter to the Arbitration. The complainant received notice on 08-03-2014 and the order was passed on 30-04-2014. On the contrary the complaint was filed long one year ago i.e. on 22-05-2013. If the Arbitrator passed the order on 30-04-2014, that order was during the pendency of the complaint. Section 3 of the C. P. Act, 1986 already came into operation. So the o.ps. cannot have any leg to stand upon.
In identical judgments reported in IV (2012 ) CPJ 87 and 1 (2005) CPJ 196, the manufacturer was directed to replace the defective car with new one. In another judgment as reported in II (2013 ) CPJ 534, Hon’ble National Commission is of opinion that in such circumstances the dealer cannot escape his responsibility. In another decision which uniquely matches this case, as reported in IV (2013 ) CPJ 410 ( NC ), Hon’ble National commission upheld the judgment of the District Forum in a case of manufacturing defect.
Therefore, in the light of the above we are of the view that this is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 157 of 2013 ( HDF 157 of 2013 ) be and the same is allowed on contest with costs as against the O.P. nos. 1, 2 and 3 and ex parte without cost as against the o.p. no. 4.
The O.P. nos. 1, 2 and 3 jointly or severally be directed to refund the sum of Rs. 2,13,624/- as detailed in schedule B to the complainant within 30 days from the date of this order. The complainant be directed to deliver the defective suit car to the o.p. no. 1 after receiving the refund money.
The o.p. nos. 1, 2 & 3 jointly or severally be further directed to pay Rs. 1,50,000/- to the complainant as compensation for causing mental pain and utter frustration together with litigation costs of Rs. 10,000/- within 30 days from the date of this order, failing the amount ( Rs. 5,87,248/- ) shall carry interest @ Rs. 10% p.a. till full and final payment.
The o.p. no. 4 be directed to stop encashment of the left A/c payee post dated cheques issued by the complainant as detailed in schedule ‘C’.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( T.K. Bhattacharya )
President, C.D.R.F., Howrah.
