THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Tuesday the 31^ST day of March, 2015

C.C.No.09/2013

Between:

Thota Narasaiah,

S/o T.Pamuleti,

Aged 29 Years, Hindu,

Agriculturist,

D.No.4-14,

Chittareni Palli Village-518 543,

Alamuru Post,

Rudravaram Mandal,

Kurnool  District.                                                  …Complainant

-Vs-

1. M/s Prani Auto Plaza Private Limited,

    The Proprietor,

    TOR Towers,

    Obul Reddy Nagar,

    NH-7, Bypass Road,

    Anantapur-515 001.

2. The Manager,

    Prani Auto Plaza,

    Beside SPY Reddy Petrol Bunk,    

    National High Way-7, 

    Nandyal-518 502,

    Kurnool District.

3. The Director,

    M/s Tata Motors, Marketing and Consumer Support,

   Passenger Car Business Unit,

   One Forbes, 5^th Floor,

   Dr.V.B.Gandhi Marg,

   Fort, Mumbai-400 023.                                      …OPPOSITE PARties

This complaint is coming on this day for orders in the presence of Sri.M.D.V.Jogaiah Sarma, Advocate for complainant and opposite parties 1 and 2 Called absent and set exparte and Sri.Eskala sreenivasulu, Advocate for opposite party No.3 and upon perusing the material papers on record, the Forum made the following.

                                                                                                 ORDER

(As per Sri.Y.Reddappa Reddy, President)

      C.C. No.09/2013

1.       This complaint is filed under section 13 of Consumer Protection Act, 1986 praying:-

1. To direct the opposite parties to replace new vehicle in the place of the above said defective vehicle sold by opposite party with fresh warranty period.

2. To pay a sum of Rs.2,00,000/- to complainant towards the compensation for mental agony and humiliation suffered by him while using the said defective vehicle sold by the opposite party.

3. To pay a sum of Rs.15,000/- being the costs of this complaint.

And

4. To grant such other and further relief as this Honourable Court deems fit and proper in the circumstances of the case.

2.    The facts of the complaint in brief run as follows:- The complainant has purchased TATA Indica Vista TD1 Car from opposite party No.2 for Rs.4,48,000/- on 21.04.2010.  Opposite party No.3 is the manufacturer of the said car. He says he bonafide believed the opposite party No.2 and took delivery of the vehicle.  But the vehicle started giving troubles to the complainant very shortly after its purchase.  The complainant rushed up to the opposite party No.2 and explained the defects emanated from the vehicle for which the opposite party No.2 has promised for its replacements.  Being convinced the complainant waited till the date of filing of this CC.  Even after completion of two services also, the opposite party No.2 did not take any steps to rectify the defects.  He narrated of the defects as follows:-

1. Chassis Number has been strike off with whitener in the Manual and service Book that handed over to him.

2. Virtually the Chassis number is different, when compared with the number in the book and on the concerned place of the vehicle.  The Chassis number on vehicle seems to be replaced.
3. Setting of the back door is totally different, when compared with the original. More so the leakage is forthcoming during rainy season. Even at the time of water servicing to the back door (dikky) and also left side front door (beside driver seating) there is leakage.
4. Owner Manual and Servicing Book doesn’t contain the service vouchers simply some torn leafs have been handed over to the complainant at the time of purchasing of the vehicle. 
5. The vehicle under subject is polished with Teflon coat, just before delivery thereby the patching are being emanated.
6. Right from the time of purchase of vehicle there is leakage of oil in the engine and it was always wet with oil.
7. All the paint stains are forthcoming on right back side handle of the vehicle till today which disclosed that the vehicle delivered to the complainant is an old one duly painted.  Even the chassis No.MAT6085219PE40979 is not tallying with Chassis No.MAT6085319PE40979.  Even the Manual Service Book too contains number of corrections.  This complainant humbly submits that the defects No.5 and 6 though noted by the opposite party No.2 at the time 2^nd servicing which took place on 04.10.2010, but the opposite party No.2 failed to rectify the said defects.

From the date of purchase of vehicle from the opposite party No.2, the complainant is facing problems with the vehicle.  He suffered with any amount of mental agony and humiliation due to the purchase of defective vehicle and its poor performance.  The complainant is fed up with the irresponsible and careless attitude of the opposite party No.2 in delivering the defect vehicle.  It amounts to deficiency of service of the opposite parties for the customers like this complainant.  He issued letter dated 04.01.2011 to opposite party No.1 explaining the defects emanated from the vehicle.  But the opposite party No.1having received the letter neither replied nor directed the opposite party No.2 to rectify the defects.  The complainant got issued legal notice dated 04.02.2011 to opposite parties 1 and 2 by demanding for replacement of defective vehicle sold to him by the opposite party No.2.  The opposite parties 1 and 2having received the said legal notice have issued a reply notice with false and baseless allegations.  Hence he is forced to approach the Court and filed the CC.  Hence he prays to pass an order in favour of the complainant against the opposite parties by directing them

1. To pay a sum of Rs.2,00,000/- towards mental agony, Rs.15,000/- costs of the complaint and replacement of the vehicle with new one.

3.       On service of notices opposite parties 1 and 2 did not choose to appear before the Forum and contest the matter.   Opposite party No.3 made his appearance, engaged an advocate and filed written version which run into 13 pages.  The sum and substantiate of the written version filed on behalf of opposite party No.3 in brief run as follows.  In para 1 he stated that the cars and the vehicles manufactured by them will pass through stringent quality checks and road trials, before the actual commercial production starts and the cars and vehicles are marketing after being approved by the Automotive Research Association of India.  In para 2 it is mentioned opposite party No.3 is ably supported by the excellent dealer ships/authorized service centers, like opposite parties 1 and 2, having excellent workshop setup for after sales servicing of the cars, which are manned by qualified and experienced personal only.  He further stated they are having large network of the servicing centers about 119 authorized dealers, 245 TATA Authorized Service centers (TASC), 219 TATA Authorized Service Points (TASP) and 222 TATA Authorized Service Outlets (TASO) workshops throughout the country. At present they are having such workshops in excess of 800 across the country.  These workshops provide scheduled services, running repairs, major repairs, spare-parts support and even carryout accident repairs to the passenger cars and utility vehicles etc. 

          He had taken preliminary objections in pages 2 to 10 sub-headed A to K.  The averments made by the complainant in the complaint are vague, baseless and with malafide intention.  He made misconceived and baseless allegations of manufacturing defect in the car without relying on any expert report from recognized and notified laboratory as mentioned 13 (1) of the Consumer Protection Act, 1986.  There is neither manufacturing defect nor deficiency of service against this opposite party. Hence the CC filed against him is liable to be dismissed.

          The car purchased by the complainant requires mandatory servicing and replacement of the specified components i.e., air filter, fuel filter etc., and recommended intervals as mentioned in the owner’s manual and service book giving at the time of sale, for smooth running and optimum performance.  But the complainant in this case failed and neglected to follow the guidelines given in the owner’s manual, as recommended for smooth and maximum performance of the car.  Every customer has carryout the mandatory recommended services at regular intervals at the authorized service centers/workshops of the opposite party.  But in the instant case except first and second free services on 22.05.2010 after 568 Kms., and on 06.10.2010 after running 1517 Kms., failed to bring his car to the authorized service centre of opposite party No.3.  The complainant brought the vehicle for first and second free services respectively.   On the other hand the two services of the vehicle was properly serviced and the complainant did not make any complaint with regard to either manufacturing defect and leak of engine oil or water etc.    

          The complainant is not coming forward while explaining why and under which circumstances he did not bring the vehicle for rest of services at regular intervals as advised in the service manual book.  There was every likely hood of having smooth and proper functioning of the car if the complainant had brought the car for services of opposite party No.1 service centre.

          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.  The complainant had taken delivery of the car, after being satisfied with the condition of the car and its performance.  The said car was delivered after carrying out of pre delivery inspection by the dealer.  All passenger cars and commercial vehicles manufactured by this opposite party are marketing only after the prototype of the car being approved by the Automotive Research Association of India.  All the cars manufactured in the plant of this opposite party are put through stringent control system, quality checks and test drives by the quality assurance department before being cleared for dispatch to the market.  All the cars manufactured at the plant of this opposite party undergoes various quality control tests till the assemble line and thereafter it is made ready for dispatch.  This opposite party is having “ISO TS/16949” certified which is the international standard for quality systems for all the Automotive Companies.  The service advisor of the workshop, who repairs to ensure quality workmanship, is adequately trained to provide proper job explanation of the works carried out and even provides test driver to the customer at the time of delivery of the car after every service/repairs to the entire satisfaction of the customer.

          The complainant was required to report the car in question for the alleged problems to the authorized service centre of the opposite party, to enable the opposite party to  consider as to whether the alleged defect in the car are inherent defects, which the complainant failed to do.  Having not acted as per the terms and conditions of the warranty granted by the opposite party, the complainant cannot be allowed to take advantage of his own breach and claim that the opposite party is liable to the complainant in this behalf. 

          The complainant purchased the car on or around 23.04.2010 from the dealer of this opposite party and the said car in question till now has reported for only two free services.    The said facts proved that the subject matter car is in absolute roadworthy condition as no complaints have been reported by the complainant.  The opposite party has been prompt and read to attend to the car it reported by the complainant under the warranty as and when reported.  Hence the prayer, as made by the complainant, for replacement of the car is untenable and unsustainable.  When the complainant signed the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances, in which he has signed the contract.  The same would be evident from clause 9 of the warrant book.  The complainant makes out no ground for relief under the provisions of section 14 of the Consumer Protection Act, 1986.  There has been no manufacturing defect in the goods purchased by the complainant or deficiency of service as alleged by the complainant.  Hence the complaint filed by the complainant is liable to be dismissed under section 26 of the Consumer Protection act.  This Forum has no jurisdiction to entertain, try and adjudicate the present complaint.  The complainant has raised issues, which involves question of facts as well as law.  In pages 10 to 13 he has denied all the allegations made by the complainant in his complaint para wise under para 1 to 7 specifically for each and every para and finally stated complainant failed to bring his vehicle for the free services as advised by the dealer and also as mentioned in Manual of Service Book during specified inter-well or after completing of fixed Kms of running.  Except first and second services he did not bring the vehicle for any service or repairs.  When the vehicle is running properly for all these years, the allegations made by the complainant in his complaint, that there is manufacturing defect or they have sold second hand vehicle after making it ready etc., is not correct and tenable.  There is neither manufacturing defect nor deficiency of service as contended by the complainant. Hence he prays to dismiss the complaint with exemplary costs.

4.       The complainant in order to prove allegations made in the complaint, filed his sworn affidavit by narrating all the facts which are mentioned in the complaint and also filed as many as 12 documents in support of his contention.  Those documents are marked as Ex.A1 to Ex.A12.  The Manager (Legal) of the opposite party No.3 filed sworn affidavit in support of their contention which run into 12 pages.  The sum and substance of sworn affidavit filed by the said Manager are almost all the facts which are mentioned in their written version.  No documents are marked on behalf of opposite party No.3.

5.       After closer of evidence on behalf of both parties, written arguments and oral arguments submitted by complainant and opposite party No.3 counsels in support of their respective contentions.  They reiterated the contentions of the complaint and written version of the complainant and opposite party No.3 respectively in their written arguments and oral submissions.

 6.      Now the points that arise for consideration are:

1. Whether there is any manufacturing defect as contended by the complainant?

2. Whether there is any deficiency of service on the part of opposite parties as alleged by the complainant?

3. If so? To what relief the complainant is entitled?

7.      POINTS i and ii:- According to the counsel for complainant Chassis number mentioned in the service manual book is different from the Chassis number available on the engine of the car.  There is leakage of the engine oil in the engine and leakage of water on the back side of the car dikky. He further submitted paint stains are available right back side handle of the vehicle.  Hence he says there is manufacturing defect in the vehicle and it is absolutely necessary to replace the vehicle. 

          As against the contention of the counsel for the complainant the counsel for the opposite party No.3 represented, there is a reputed the company, all the vehicles manufactured by them will pass through stringent quality checks and road trials, before the actual commercial production starts, the cars and vehicles are marketing after being approved by the Automotive Research Association of India.  The complainant did not follow the instructions given in the service manual book.  Except for first and second services he did not bring the vehicle for servicing to the Authorized Service Centre or work shop of opposite parties.  There is no manufacturing defect in the vehicle as contended by the complainant.  Hence he prays to hold this point against the complainant and in favour of opposite parties.   

There is no dispute, that the opposite party No.3 is manufacturer of the car which was delivered to the complainant.  The only dispute herein is whether there is any manufacturing defect in the vehicle as alleged by the complainant in his complaint and also in his sworn affidavit.  Now we have look into, about the intention of the legislatures with regard to definition of “defect: as defined in the Act.  As per Section 2(f)  “defect” means any fault, imperfection or short-coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or) implied, or as is claimed by the trader in any manner whatsoever in relation to any goods.  The above definition made it clear any fault imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force, if not maintained, it will come under definition of defect.  The complainant mainly harping that the chassis number written in the Owner’s Manual and Service Book and the chassis number which is available on the engine of car are different.  The Owner’s Manual and Service Book is marked as Ex.A4.  The chassis number is written in it as MAT6085219PE40979, engine number is written as 475ITD14CQZP51136.  The invoice issued by the opposite party No.1 is marked as Ex.A5.  It is dated 23.04.2010 in the invoice chassis number is written as MAT6085319PE40979, the engine number written as 475ITD14EQZP51136.  In the Certificate of Registration which is marked as Ex.A6 the chassis number is written as MAT6085319PE40979, the engine number is written as 475IDT14EQZP51136 only difference that is found in Ex.A4 with regard to chassis number is written as MAT6085219 instead of MAT6085319 as mentioned under Ex.A5 and Ex.A6 respectively.  When the complainant issued a letter in person through post to opposite party No.1 under Ex.A9 and a notice through his counsel to opposite parties 1 and 2 under Ex.A10 by mentioning the above said difference which is existing in Ex.A4, opposite parties got issued a reply under Ex.A12 through their counsel.  In para 4 of reply notice it is clearly mentioned “may be it be a manual mistake in writing the chassis number and the same does not mean that the used vehicle has been given or a used manual book has been given. It is highly impossible and next to impossible to replace the chassis number of the vehicle and your client is put to strict proof of the said allegation”.  It is not mentioned in Ex.A4 on which date it was handed over to the complainant herein.  But Ex.A1, Ex.A2 and Ex.A3 shows the complainant made payments to opposite party No.1 a sum of Rs.40,000/- on 05.04.2010, a sum of Rs.3,50,000/- on 19.04.2010 and another sum of Rs.58,000/- on 21.04.2010.  The Invoice which is marked as Ex.A5 and Form C.R. Tem which is marked as Ex.A6 were given to the complainant on 23.04.2010 and 24.04.2010 respectively.  It is clearly mentioned under Ex.A5 and Ex.A6 chassis number as MAT6085319PE40979 the same chassis number is available on the chassis of the car which was delivered to the complainant.  By taking advantage of the mistake creptin under Ex.A4 relating to chassis number, the letters 219 instead of 319, complainant is alleging that the vehicle sold to him is different from that of the vehicle mentioned under Ex.A4.  The contention of the complainant that the vehicle which was delivered to him is different from that of the vehicle which is shown under Ex.A4 is not tenable. 

With regard to contention of the complainant that the setting of the back door is totally different, when compared with the original, and the leakage is forthcoming during rainy season even at the time of water servicing and right from the onset of the purchase there is leakage of oil in the engine and it will be always wet with oil etc., have to be proved by the complainant initially by producing primafacie material.  Except his oral testimony filed by way of sworn affidavit and letter addressed by him and notice issued through his counsel, he did not produce any other material to prove the same.  Admittedly the complainant took his vehicle to the service centre of opposite party No.2 on 22.05.2010 for first free service at 568 kms and on 06.10.2010 for second free service at 1517 kms.  If the defects mentioned with regard to leakage of oil and were brought to the notice of opposite party No.2 when he had taken the vehicle for first and second free services as mentioned above, opposite parties ought to have been issued a check list by mentioning the observations made by the concern person, who received the vehicle for service, and noted down all the points that were brought to his notice to rectify during the service of the vehicle and a copy of the same shall be with the complainant.  After completion of the service of the vehicle, they will prepare a bill by showing all the works which they attend to the vehicle during the service if chargeable by mentioning the amount or otherwise by mentioning “O” as it was free service.  For the reasons best known the complainant failed to produce either check list by mentioning the observations made by the mechanic at the time of receiving the vehicle for service, and the bill prepared by the accounts section after completion of the service.  If those documents were produced there was likely hood of knowing about whether the defects which the complainant now mentioned in his complaint were also brought to the notice of opposite party No.2 and whether opposite party No.2 attended to them and whether they were rectified or not etc.  Even if any leakage of water in the body or oil in the engine are there, they can be attended by the opposite parties in their service centre or workshops, if the complainant produced the vehicle before them for rectification.  Though two more services were available, the complainant did not choose to take his vehicle to the service centre of opposite party No.2 subsequently.  The complainant is not coming forward with any specific reason why he had not taken the vehicle to the service centre of opposite party No.2, through he was having two more free services.

8.       As far as another allegation of the complainant is concerned that the setting of the back door is totally different, when compared with the original, is also is not tenable for simple reason it was clearly visible to the necked eye. The complainant was expected to go through the vehicle thoroughly and purchase the same after satisfying himself.  Right back side handle of the vehicle till today paint stains are visible which discloses that the vehicle delivered to the complainant is an old one duly painted etc., is also not tenable, as it is also visible to the naked eye.  The complainant was expected to observe these things which are visible to naked eye and after satisfying himself only, he can purchase the vehicle.  After purchasing the vehicle, and making use of the same for more than 4½ years he cannot complain that back door setting is different or paint stains are existing right back side handle of the vehicle etc as those things can be easily visible to the naked eye and as the purchaser shall be vigilant before purchasing the vehicle and making use of the same for considerable period now he cannot complain about those visible defects.

          The learned counsel for the complainant relied on a decision reported in IV (2014) CPJ Page 318 (NC).  The facts of the said case are in toto different from the facts of the present case.  In Para 22 of the said Judgment the Honourable National Commission observed the complainant should have been vigilant and should have seen what kind of machine he was purchasing.  The complainant should have taken the objection at that time, like a vigilant purchaser.  There is not even an iota of evidence that he was forced to take that machine.  He took the said machine of his own volition. The observation made by the Honourable National Commission is applicable to the present case to the extent of the objections raised by the complainant under point No.3 and 7 of Ex.A9 and Ex.A10.  Even if there is any leakage either in the body of the vehicle or engine, the complainant could get rectify the same by taking vehicle to the service centre of opposite parties only.  He cannot ask for replacement of new one on those grounds.  Thus we answered this point against the complainant and in favour of the opposite parties.

9.      POINT No.ii:- While answering point No.2 we have made it clear the points raised by the complainant in his letter and in his legal notice are not coming within the perview of manufacturing defect.  But when the complainant is complaining with regard to leakage of water from the body and leakage of oil from the engine on the back side of the car dikky etc., opposite parties ought to have been attended and were expected to rectify the same either during the free services or any payment if not permissible for free service or replacement as the case may be it they are not coming within perview of free service.  We feel it is bounded duty of the opposite parties to attend to the defects which were brought to their notice by the customer, when the vehicle was brought to the service station either for service or with a specific defect.  In the instant case it appears opposite parties 1 and 2 failed to render service to the complainant and to rectify the problems which were brought to their notice by the complainant.  Though notices were serviced on opposite parties 1 and 2 for the reasons best known both of them did not choose to appear before this Forum and put forward to their defence.  Hence we feel it is a clear cut case of deficiency of service on the part of opposite parties in not attending to rectify the problems of the complainant which were brought to their notice.  Because of the deficiency of service on the part of opposite parties, the complainant suffered a lot of mental agony though he purchased a new vehicle from the opposite party No.1. Thus we are answering this point in favour of the complainant and against the opposite parties.

10.    POINT No.iii:- While answering point No.2 we have clearly discussed opposite parties failed to rectify the defects in the vehicle i.e., leakage of water from the body, leakage of oil from the engine and defect painting on right back door etc.  There is deficiency of service on the part of opposite parties.  Hence an award is passed against opposite parties 1 to 3 and in favour of complainant by directing them to attend the repairs of the vehicle (Car) free of cost and pay a sum of Rs.20,000/- by way of compensation towards mental agony with which the complainant suffered due to negligent attitude of opposite parties and also to pay a sum of Rs.2,000/- towards costs of this CC.

Complainant is directed to take his vehicle to the service centre of opposite parties 1 and 2 within one month from today and opposite parties 1 and 2 are directed to attend and rectify all the defects that are brought to their notice by the complainant i.e., leakage of water, engine oil, right back door setting etc at free of cost and if opposite parties 1 and 2 failed to attend and rectify those defects, the complainant is at liberty to take his vehicle to any other TATA Authorized Service Station, get repaired and claim the amount which he is going to incur to get repairs of those defects by producing the bills and by proceeding against all the opposite parties. 

11.     In the result, the complaint filed by the complainant is partly allowed, and an award is passed against opposite parties 1 to 3 and in favour of complainant by directing them to attend the repairs of the vehicle (Car) free of cost and to pay a sum of Rs.20,000/- by way of compensation towards mental agony with which the complainant suffered due to negligent attitude of opposite parties and also to pay a sum of Rs.2,000/- towards costs of this CC.

We direct opposite parties 1 to 3 are to pay the amounts as directed above within one month from today failing which the complainant is at liberty to execute this order and realize the same by proceeding against opposite parties according to law .

          Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 31^st day of March, 2015.

          Sd/-                                                                                         Sd/-

LADY MEMBER                                                                          PRESIDENT

    APPENDIX OF EVIDENCE

         Witnesses Examined

For the complainants:- Nil                    For the opposite parties:- Nil

List of exhibits marked for the complainant:-

Ex.A1           Payment Voucher issued by opposite party No.2 for Rs.40,000/-

                   dated 05-04-2010.

Ex.A2          Payment Voucher issued by opposite party No.2 for

                   Rs.3,50,000/- dated 19-04-2010.

Ex.A3          Payment Voucher issued by opposite party No.2 for Rs.58,000/-

                   dated 21-04-2010.

Ex.A4          Owner’s Manual and Service Book.

Ex.A5          Invoice dated 23-04-2010.

Ex.A6          Photo copy of Temporary Registration Certificate issued by A.P.

Transport Department dated 24-04-2010 along with photos.

Ex.A7           Service Vouchers issued by opposite party No.2 (Nos.2)

Ex.A8          Certificate of Incorporation of TATA Motors.

Ex.A9           Letter issued by the complainant to the opposite party No.1

                   dated 04-01-2011.

Ex.A10        Office copy of Legal Notice dated 04-02-2011 along with Postal

                   Receipts.

Ex.A11        Postal Acknowledgement of opposite parties1 and 2.

Ex.A12        Office copy of Reply Letter dated 29-02-2011

List of exhibits marked for the opposite parties:- Nil

          Sd/-                                                                                         Sd/-

LADY MEMBER                                                                          PRESIDENT

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