State Consumer Disputes Redressal Commission
Tata Motors Ltd. vs Hari Chand Another on 19 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 312 / 2010
Tata Motors Ltd.
R.O.: Unit No. 305, IIIrd Floor
Signature Tower B, South NH 8, Gurgaon (Haryana)
......Appellant / Opposite Party No. 4
Versus
1. Sh. Hari Chand S/o Sh. Dileram
R/o Nath Nagar, Jwalapur, Haridwar
......Respondent No. 1 / Complainant
2. I.S. Motors Pvt. Ltd.
Authorized Showroom and Workshop (Service Center)
Industrial Area, Haridwar, District Haridwar
Through Proprietor
......Respondent No. 2 / Opposite Party No. 1
3. Oberai Motors
Authorized Dealer Tata Passenger Cars
P.O. Majra, Saharanpur Road, Dehradun
......Respondent No. 3 / Opposite Party No. 3
4. Gangotri Automobiles
Authorized Service Center, Ranipur Jhal,
Delhi Road, Jwalapur, Haridwar
......Respondent No. 4 / Opposite Party No. 5
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. Sachin Chaudhary, Learned Counsel for Respondent No. 1
Sh. K.K. Tripathi, Learned Counsel for Respondent No. 3
None for Respondent Nos. 2 & 4
AND
FIRST APPEAL NO. 365 / 2010
Oberai Motors
Authorized Dealer Tata Passenger Cars
P.O. Majra, Saharanpur Road, Dehradun
.......Appellant / Opposite Party No. 3
Versus
1. Sh. Hari Chand S/o Sh. Dileram
R/o Nath Nagar, Jwalapur, Haridwar
......Respondent No. 1 / Complainant
2. I.S. Motors Pvt. Ltd.
Authorized Showroom and Workshop (Service Center)
2
Industrial Area, Haridwar, District Haridwar
Through Proprietor
......Respondent No. 2 / Opposite Party No. 1
3. Tata Motors Ltd.
R.O.: Unit No. 305, IIIrd Floor
Signature Tower B, South NH 8, Gurgaon (Haryana)
......Respondent No. 3 / Opposite Party No. 4
4. Gangotri Automobiles
Authorized Service Center, Ranipur Jhal,
Delhi Road, Jwalapur, Haridwar
......Respondent No. 4 / Opposite Party No. 5
Sh. K.K. Tripathi, Learned Counsel for the Appellant
Sh. Sachin Chaudhary, Learned Counsel for Respondent No. 1
Sh. S.K. Gupta, Learned Counsel for Respondent No. 3
None for Respondent Nos. 2 & 4
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 19/06/2017
ORDER
(Per: Mrs. Veena Sharma, Member):
These two appeals, one by the opposite party No. 4 and another by the opposite party No. 3 filed under Section 15 of the Consumer Protection Act, 1986, arise out of the order dated 08.09.2010 passed by the District Forum, Haridwar in consumer complaint No. 211 of 2009, whereby the District Forum has allowed the consumer complaint and directed the opposite parties to repair the vehicle of the complainant and provide the same to the complainant, within one month from the date of order and also to pay Rs. 5,000/- towards damages to the complainant. Since both the appeals arise out of the same order passed by the District Forum, therefore, these appeal are being disposed of by this Common order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are that the complainant had purchased a vehicle Tata Sumo for domestic use on 11.05.2008 from the opposite party No. 3-Oberai Motors, 3 Dehradun and the same was financed by opposite party No. 2-Tata Motor Finance Ltd., Dehradun. The said vehicle had some technical problem in the engine, so the sound of the vehicle was differ from the other vehicle. There was a manufacturing defect in the engine, for which the complainant informed the opposite party Nos. 1, 3 & 5 several times. Since the date of purchase, the said vehicle was suffering from engine noise. The opposite party No. 5, authorized service center, was also informed about the said problem, but they could not rectify the defects. The complainant brought his vehicle to the service center on 16.08.2009 & 26.08.2009, during repairing the vehicle the engine was seized. The complainant requested to rectify the defects of the vehicle as it was under warranty, but to no avail. Thereafter, alleging deficiency in service on the part of the opposite parties, the complainant has filed a consumer complaint before the District Forum, Haridwar.
3. Objections on behalf of I.S. Motors Pvt. Ltd. & others -opposite party Nos. 1, 3, & 4 have been filed before the District Forum. In the objections it has pleaded that the complaint is based on wrong and illegal facts. The opposite party has not received any service charges from the complainant. So the complaint does not come under the purview of the Consumer Protection Act, 1986. The complainant purchased the alleged vehicle for commercial use in Dehradun. So the complaint is not maintainable and no cause of action arose in the territorial jurisdiction of the Forum. Hence, District Forum has no jurisdiction to entertain the consumer complaint. That it is admitted that the vehicle 'Tata Somo' for commercial use had been purchased by complainant from the company on 17.05.2008 and all terms and conditions were mentioned in the Owner's manual & Service Book. It is not admitted that the answering opposite party given Guarantee or Warranty to complainant, because as per agreed terms and conditions and exclusions of the Owner's manual & Service Book, only warranty was given as per mentioned terms and conditions in the manual and obligation of the company was under this warranty will be limited to repairing or replacing, free of charge, such parts of 4 the vehicle, which in opinion are defective upon the vehicle brought within warranty period, but the complainant did not comply the terms and conditions of the warranty and committed willful default, so answering opposite party is not liable to pay any compensation. It is not admitted that the complainant purchased the said vehicle for personal use. Although the vehicle was used for commercial purpose and it is not admitted that there was manufacturing defect in the engine of the vehicle. Although it is true fact that the running of the vehicle was higher side and complainant did not serviced the vehicle within time. The vibration can be in the engine due to misuse of the vehicle or used mixed diesel, i.e. sub-standard quality and complainant never complaint within time of the services. After inspection, it was found that sensor was broken, so there was no manufacturing defect in the vehicle and it is also specifically stated that the vehicle cannot run 50000Kms., if there was any manufacturing defect in the engine. So all the allegations made are baseless and without any sufficient reason. It is wrong to state that the company charged any additional amount from complainant and given any commitment for repair of engine. Although it is true fact that the complainant did not mention the specific date of the services in the complaint and he can take delivery from Oberai Motors.
4. The opposite party No. 5-Gangotri Automobiles, Haridwar has filed written statement before the District Forum and has not admitted para Nos. 1 to 10 of the consumer complaint. It is not admitted that the answering opposite party is a branch of Tata Motors, while the fact is that the answering opposite party is the authorised service center of Tata Motors. The complainant has brought his vehicle at the answering opposite party's service center on 01.06.2008, 20.07.2008 and 01.11.2008 and he never made any complained about noise in the engine. Rather the vehicle was handed over to the complainant on his satisfaction after rectifying the problems. It is denied that on 30.07.2009 the complainant had brought his vehicle in answering opposite party's service center for service. Complainant has brought his vehicle on 23.12.2008 at service center. There is no question for replacement 5 of vehicle, as the vehicle of the complainant was not defective. There is no deficiency in service on the part of the answering opposite party.
5. Opposite party No. 4-Tata Motors Ltd. has filed written statement before the District Forum and has pleaded that it is submitted that the complainant has not come before the Forum below with clean hands and is guilty of suppression of material facts. Complainant has never adhered to the terms and conditions of the warranty policy nor has followed the recommended services, as prescribed under the Operator's service book. The complainant in glaring and deliberate attempt of violation of warranty policy and its terms and conditions, has not brought his vehicle for regular service at any of authorized service centers and instead taken the vehicle in question to the unauthorized workshops. From the perusal of the record of services to be performed, which is mentioned herein below that the complainant has not carried out 4th and 5th services at 45000kms and 60000kms prescribed in Owner's Manual Book:-
Record of Services to be Performed Recommended Type Remarks Service At Km PDI PDI PDI Done 15000 2nd Service Carried out on 20/09/08 at 15061 km.
30000 3rd Service Carried out on 23/12/08 at 29003 km.
45000 4th Service Not Carried Out
60000 5th Service Not Carried Out
It may be noted herein that for effective maintenance and smooth running of the vehicle, every customer has to carry out the aforesaid services at regular intervals. It is pertinent to mention here that as per own version of the complainant, he reported the problem on 30.07.2009, i.e. after recommended services, when he failed to bring the vehicle at the authorized workshops. Complainant did not bring the vehicle in question at regular intervals and extensively used the vehicle for commercial purposes. The vehicle in question has covered a distance of 68502kms. as on 26.08.2009, i.e. within a 6 span of 1¼ year. He has not produced any records, so as to show that the complainant had regularly serviced the vehicle, as per recommended service schedule. The complainant had last brought his vehicle after covering a distance of 68502 kms. in the month of August, 2009. However, thereafter the complainant not brought his vehicle for regular services, which is a blatant violation to the warranty policy. As per Clause 5 of the terms and conditions of warranty "This warranty shall not apply if the vehicle or any part there of is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments, our authorised dealers or their sub-dealers or service centers 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 vehicle is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of the carrying capacity as certified by us or the services prescribed in Operator's Service Book are not carried out by buyer through our sales or service establishments, our authorized dealers or their branches or service stations. It is submitted that the warranty offered on every vehicle, manufactured by the answering opposite party, is subject to such terms and conditions as contained therein and the violation thereof would result in forfeiture of the warranty, which is clearly stated in clause 5 of the terms and conditions of warranty. In complainant's case, the vehicle was not serviced as per the service schedule and, thus, the warranty policy is not applicable. The complainant was under obligation to avail each and every services / repairs from any of the authorized dealers/ services stations of the answering opposite party at regular intervals. The complainant is not a consumer within the meaning of the term 'Consumer' as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. A transaction in which purchase of goods is for commercial purpose. In the entire complaint, the complainant has nowhere stated that he has purchased the vehicle for his livelihood purposes. The complainant has not filed any documentary proof in support of his contention to show that the vehicle really has any manufacturing defect. In the present case, no expert evidence has been 7 adduced by the complainant to establish any manufacturing defect in the vehicle. It is crystal clear that there has been no deficiency in service on the part of the answering opposite party. Consumer complaint is liable to be dismissed under Section 26 of the Act, for being false, vexatious, frivolous and baseless. The complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite party, which is a company of long standing high repute and as a ruse to extract money without just cause or valid reason. The complainant has not served any demand notice on the answering opposite party before filing the consumer complaint. It is a mandatory requirement of the Act as well as Rules that before filing any complaint, a prior demand notice is necessary to be served upon by the complainant.
6. The opposite party No. 2-Tata Motors Finance Ltd. has filed written statement before the District Forum and has pleaded that consumer complaint is not maintainable, as the answering opposite party has been unnecessarily dragged into the present litigation for no fault in its part. The answering opposite party is only a financier. The complainant is not entitled to claim any relief barred by Section 41 of the Specific Relief Act and none of the terms of the loan agreement between the complainant and the answering opposite party are in dispute. The answering opposite party is not responsible for any defects/repairs, nor it has charged any amount from the complainant for repairs of the vehicle, nor it has undertook to repair the vehicle in case of any defects or damage. Further the repayment of loan amount is unconditional and complainant is not entitled to stop payment of the installments irrespective of the fact whether the vehicle is having defects or not operatable or working. The complainant has placed on record the Registration Certificate of the vehicle in question and the name of the answering opposite party is duly endorsed as financier. The answering opposite party is neither the manufacturer nor dealer / supplier nor it has charged any amount from the complainant towards repair of the vehicle. That under the present transaction there are three different transaction independent of each other, i.e. 8 manufacturing by a manufacturer, sale by the Dealer and finance by the financier. The loan agreement between the complainant and the answering opposite party is totally not connected even with the alleged problems / defects in the vehicle. The answering opposite party is not responsible even for any manufacturing defects in the said vehicle. There is no deficiency in service on the part of the answering opposite party.
7. The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 08.09.2010 in the above manner. Aggrieved by the said order, the opposite party No. 4 has filed First Appeal No. 312 of 2010 and the opposite party No. 3 has filed First Appeal No. 365 of 2010, thereby assailing the propriety and legality of the impugned order passed by the District Forum.
8. We have heard Sh. S.K. Gupta, learned counsel for the appellant, Sh. Sachin Chaudhary, learned counsel for respondent No. 1, Sh. K.K. Tripathi, learned counsel for respondent No. 3 in First Appeal No. 312 of 2010 and Sh. K.K. Tripathi, learned counsel for the appellant, Sh. Sachin Chaudhary, learned counsel for respondent No. 1, Sh. S.K. Gupta, learned counsel for respondent No. 3 in First Appeal No. 365 of 2010. We have also perused the entire record of the District Forum as well as material placed on record. None appeared on behalf of respondent Nos. 2 & 4 in both the appeals.
9. So far as the First Appeal No. 312 of 2010 filed by the appellant- opposite party No. 4 is concerned, learned counsel for the appellant has submitted that impugned judgment had been obtained by playing fraud and the same is liable to be set aside. Impugned judgment is patently erroneous, factually wrong, legally perverse, arbitrary, capricious, is without jurisdiction. While passing the impugned order, the Forum below has failed to consider the fact that the complainant has not acted as per the warranty policy and procedure of the appellant, since the complainant had not availed the various services as required under the warranty policy and procedure and had been 9 negligent towards his vehicle the same was misused and even maintenance was improper and inadequate. From the perusal of the papers submitted by the respondents, it is clear that the respondent No. 1 had been provided the timely services and nothing is revealed that the vehicle was not plying on the road. As per the own admission of respondent No. 1, the vehicle had been running and had run more than 68000 kms. as on 26.08.2009 would reveal that vehicle was not having any manufacturing defect. The Forum below had erred in giving a finding over the pleadings of the opposite party's wherein it had specifically been stated that the vehicle was an accidented vehicle and after accidental repairs the respondent No. 1 had taken the delivery on 27.07.2009, but this fact was concealed by the respondent No. 1 before the Forum. The Forum had erred in not considering the fact that the said vehicle needed expert evidence, but without any expert evidence, the finding that there was manufacturing defect in the vehicle is wholly erroneous and is liable to be set aside.
10. In First Appeal No. 365 of 2010 filed by the appellant-opposite party No. 3, learned counsel for the appellant has submitted that the District Forum has failed to consider the fact that the complainant had not filed any cogent documentary proof or evidence in support of his complaint, nor had proved anything alleged in the complaint and in absence of the proof passing of the impugned order is erroneous and is liable to be set aside. The District Forum had failed to decide the preliminary issue of jurisdiction since neither the appellant nor its authorized dealer, i.e. respondent No. 3 carry on business in District Haridwar, so as to make the jurisdiction within District Forum, Haridwar.
11. It was argued by the learned counsel for the manufacturer that there was no expert evidence on record to show that vehicle in question had any manufacturing defect and in the absence of expert evidence, the District Forum was not justified in holding that the defects should be rectified during warranty period. It was also submitted that on 28.08.2009 within a span of 1¼ years the vehicle had run 68502kms and since the vehicle had been 10 extensively used and hence it cannot be said that the same is having manufacturing defect. It was also submitted that the District Forum has not complied with the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986 and has not sent the vehicle to appropriate laboratory for analysis. The another plea of the counsel for manufacturer that the warranty offered on every vehicle, manufactured by the answering opposite party, is subject to such terms and conditions as contained therein and the violation thereof would result in forfeiture of the warranty, which is clearly stated in Clause 5 of the terms and conditions of warranty, which is extracted. The complainant was under obligation to avail each and every service from any authorized dealer/service center. Apart from this, the complainant has concealed the material fact that the vehicle met with an accident and reported at the workshop of I.S. Motors Ltd.-opposite party No. 1. The complainant after accidental repairs had taken the delivery of the vehicle in question on 27.07.2009. The complainant has deliberately and melafidely concealed this fact. As per Clause 5 of the terms and conditions of this warranty shall not apply, if the vehicle meets with an accident. The alleged problem in the engine is also after the date of alleged accident.
12. There is no dispute regarding the purchase of the vehicle. The only dispute is whether the said vehicle was suffering from any manufacturing defect or not?
13. The main grievance of the complainant is that the vehicle was suffering from manufacturing defect at the time of purchase and secondly the defects of the vehicle were not rectified during warranty period.
14. After perusal of the papers, written statements of opposite parties and going though the pleadings, we do not find any job card related to services, which can show that there was any problem in the vehicle. The respondent No. 1-complainant failed to file any technical report before the District Forum regarding any manufacturing defect in the vehicle in question.
1115. In the case of Scooter India Limited Vs. Manjulaben Kiritbhai and others; III (2010) CPJ 235 (NC), the Hon'ble National Commission has held that the complainant failed to discharge onus of proving manufacturing defect and no expert report was produced. In the instant case also the complainant-appellant has not produced any expert evidence to prove that the vehicle is suffering from any inherent manufacturing defect.
16. In the case of Classic Automobiles vs. Lila Nand Mishra & Ors.; I (2010) CPJ 235 (NC), the Hon'ble National Commission has held that the onus to prove manufacturing defect lies on complainant. No expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect. Vehicle repeatedly brought to service station for repairs, no ground to hold that the vehicle suffering from manufacturing defects.
17. In the case of Tata Motors Ltd. vs. Deepak Goyal & Ors.; I (2015) CPJ 607 (NC), the Hon'ble National Commission has held that merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects.
18. After perusal of the terms and conditions of the warranty, it is clear that the warranty shall be for 24 months or 75000 kms., whichever is earlier. This warranty shall not apply if the vehicle met with an accident. According to the appellant, the vehicle in question met with an accident and after accidental repair the respondent No. 1-complainant has taken the delivery of the vehicle on 27.07.2009. This contention was never denied by the respondent No. 1-complainant. So the complainant cannot take any benefit, as the vehicle was in warranty period, but the disputed vehicle met with an accident. The appellant has failed to prove manufacturing defect in the vehicle in question by providing expert report. There is no evidence on record to show that complainant-respondent No. 1 had produced the vehicle for proper free services.
1219. Thus, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside. Consequently, both the appeals are fit to be allowed.
20. For the reasons aforesaid, both the appeals are allowed. Impugned judgment and order dated 08.09.2010 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 211 of 2009 is dismissed. No order as to costs. Amount deposited by the appellant in First Appeal No. 312 of 2010 and amount deposited by the appellant in First Appeal No. 365 of 2010 be released in their favour.
21. Let the copy of the order be kept on the record of First Appeal No. 365 of 2010.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)