State Consumer Disputes Redressal Commission
Gaurav vs Tata Motors Pvt.Ltd. on 26 September, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 974 of 2017 Date of Institution: 16.08.2017 Date of Decision : 26.09.2017 Gaurav s/o Sh. Mohan Lal, C/o Bharat Agricultural Industries, near Railway Sttion, Bhiwani, Tehsil and District Bhiwani, Haryana. Appellant-complainant Versus 1. Tata Motors Limited through Vice President Commercial, Marketing & Customer Support, Passenger Car Business Unit, 26th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai, Maharashtra. 2. Telmos Automobiles Private Limited, authorised passenger Car dealer Opposite Vidyut Nagar, Delhi Road, Hisar, Haryana, through its Manager. 3. Raj Motors, Authorised Service Station/Workshop of Tata Motors Limited Dadri Road, Bhiwani, Haryana. Respondents-Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Shri Balbir Singh, Judicial Member.
Argued by: Shri Durgesh Aggarwal, Advocate for appellant. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred against the order dated June 19th, 2017 passed by District Consumer Disputes Redressal Forum, Hisar (for short 'the District Forum') whereby complaint was dismissed.
2. Gaurav-complainant (appellant herein) purchased a car (Tata Indigo-LS Diesel Model Euro-II), bearing Chassis No.601144DVZP44534 Engine No.475IDT 12 DVZP40640 on May 05th, 2004, manufactured by Tata Motors Limited-Opposite Party/respondent No.1, from Telmos Automobiles Private Limited-Opposite Party/respondent No.2 for a consideration of Rs.4,64,173/-. The complainant, registered owner of the above mentioned vehicle got the vehicle insured with National Insurance Company Limited (for short 'the Insurance Company'), Bhiwani. At the time of purchase, the complainant was provided warranty for a period of 1½ year or up to coverage of a distance of 50,000 Kms whichever is earlier for repair and replacing the defective parts of the car vehicle free of cost. Thereafter, on payment of Rs.4,000/-, warranty was extended for a period of 1½ year more or up to coverage of a distance of 150000 Kms whichever is earlier. Three years warranty period was to expire on May 04th, 2007. After a few days, during warranty period, radiator of the car got heated up and whole coolant was thrown out and smoke started coming out of the engine when the complainant was travelling in the vehicle from Bhiwani to Delhi. The complainant had to stop the car vehicle number of times to reach Delhi and covered a distance of 135 Kms. The car vehicle was brought to the showroom of the opposite party No.2. The complainant was told that there is manufacturing defect in the car which needs replacement. The opposite party No.2 told the complainant that he has no authority to replace the car. However, the opposite party No.2 replaced the engine of the car on May 18th, 2004. The complainant was assured that he will not face any difficulty in future.
3. As per version of the complainant due to manufacturing defect in the engine, the car vehicle was giving average of about 12 Kilometer Per Litre (KMPL). The complainant was assured by the opposite party No.2 that average was likely to improve after first service. First Service was got done on August 06th, 2004 after coverage of a distance of 5590 Kms. After first service also, there was no improvement in the average consumption of the vehicle. The Speedo meter of the car vehicle also became defective which was also replaced under warranty on August 06th, 2004 but the Speedo meter again became defective. In this regard, a letter was written to the opposite party No.1 also vide letter dated September 16th, 2004. When the vehicle was taken to the premises of the opposite party No.2 for second service after coverage of 7490 Kms. on November 16th, 2004, the defects were pointed out in the Speedometer, pick-up, problem, in rear seat, rattling noise in the car and average of consumption of the car. In this way, after service of the vehicle second time and change of engine also, there was no improvement in the average and pick-up of the vehicle.
4. Third service was done on April 28th, 2005 in the workshop of the opposite party No.3 at Bhiwani after coverage distance of 10487 Kms on April 06th, 2005. After service, the car vehicle again got overheated and coolant was thrown out. The car vehicle was again taken to the workshop of the opposite party No.3 on April 07th, 2005. The complainant was told that there is defect in the engine of the vehicle. The opposite party No.3 changed the Head Gasket, Valve Seal Set, one Valve Guide and handed over the car vehicle to the complainant. On January 17th, 2006 the car vehicle again over-heated and stopped on the way. The car vehicle was got repaired from the opposite party No.2. The defects were detected in the Turbo Charger and Condenser Fan, which were replaced during extended warranty period but the opposite party No.2 charged an amount of Rs.8012/- from the complainant vide bill dated January 24th, 2006.
5. Again in the month of March, 2006, when the complainant was travelling in the car vehicle while returning back from Ludhiana, the car vehicle got heated and started throwing out coolant and smoke. The car vehicle was sent to Dada Motors Limited, authorised dealer of Tata Motors through his driver after covering a distance of 70 Kms. The complainant was told by Dada Motors that the problem arose in the vehicle due to alteration of the wiring in the engine compartment. The break down in the vehicle was due to this reason and as per extended warranty norms in alteration and change in the vehicle system makes the policy void automatically and the claim is not acceptable. So, Dada Motors refused to do the needful regarding repair of the car vehicle. At that time, the engine of the vehicle was found badly seized and head surface got melt. On further checking, lot of extra wiring fitted in the engine compartment was found with wiring harness tampered and fuse box melt. No coolant was found in the vehicle. Radiator fan acc relay fuse and main fuse melt temp sensor wiring tampered, the coolant was not there and it was a case of overheating. The complainant is facing problem of overheating and throwing coolant from the very beginning. In this way, there is a manufacturing defect in the car. The car vehicle of the complainant was repaired by the opposite party No.2 but this time charged an amount of Rs.42,320/-. The complainant also spent an amount of Rs.3,000/- when the car vehicle was shifted to the workshop of the opposite party on April 14th, 2006. It is a clear case of deficiency in service. The complainant is entitled to receive the total amount received by the opposite parties from the complainant regarding repair of the vehicle during warranty period as well as cost price of the vehicle, as there is manufacturing defect in the vehicle.
6. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer that the opposite parties be directed to replace the car vehicle or in the alternative to pay an amount of Rs.4,64,173/- being total price of the car vehicle with interest at the rate of 15% per annum; to pay an amount of Rs.53,883/- received by the opposite parties regarding repair of the vehicle during warranty period including an amount of Rs.3,000/- spent for shifting the vehicle; to pay an amount of Rs.1.00 lac on account of un-necessary harassment, mental agony and an amount of Rs.11,000/- as litigation expenses.
7. Opposite Party No.3 - Raj Motors was given up being un-necessary vide order dated April 09th, 2013 passed by the learned District Forum.
8. Opposite Party No.1 - Tata Motors Limited in its written version has taken plea that the complainant is not covered under the definition of consumer as the vehicle was being used extensively purely for commercial purposes. The vehicle covered distance of 35842 Kms within a period of 26 months from May 05th, 2004 the date of purchase. There was no manufacturing defect in the vehicle. The vehicle having manufacturing defect cannot be supposed to cover distance of 35842 Kms within a period of two years. The complaint has been filed by the complainant only with the purpose to get the old vehicle replaced with a new one. As provided under Section 13(1)(c) of the Consumer Protection Act, 1986, the defect in goods cannot be determined without proper analysis or test of the goods after obtaining sample and to send it to the appropriate laboratory. In the instant case, in absence of any expert report, the complainant has failed to prove that there was any manufacturing defect in the vehicle. In fact, the District Forum in the very beginning should have directed the complainant to produce expert report to establish that it is a case of manufacturing defect. When the vehicle was checked in Dada Motors, lot of extra wiring, fittings were found in the engine compartment with OE wiring harness tampered, fuse box melt, radiator fan, ACC relay fuse melt, temperature, sensor wiring also tampered. The vehicle was also found without coolant. These circumstances show that it is a case of violation of norms and terms of the extended warranty and the extended warranty became automatically void. Due to this reason, the complainant was refused to repair the vehicle under extended warranty. In this situation, the vehicle was repaired on payment. The complainant is not entitled to receive any amount as claimed in the complaint as there was no manufacturing defect in the vehicle. It is prayed that the complaint be dismissed with cost.
9. Opposite Party No.2 - Telmos Automobiles Private Limited, in its written version has taken plea that the District Forum has no jurisdiction to decide this complaint and that the complaint is bad for non-joinder of necessary parties. It is pleaded that radiator of car cannot acquire heat after proper coolant is being used by the owner of the vehicle. The function of the water and coolant is to maintain temperature of the radiator. The temperature of the radiator cannot go high because of defect in engine. The average of the car depends upon condition of the car driving skill, quality of fuel, traffic conditions, temperature in atmosphere, use of air conditioner/heater, air pressure in tyres, regular service and maintenance of the vehicle. The defect in engine is not likely to affect average of the vehicle. It is prayed that the complaint be dismissed with cost.
10. It will be pertinent to mention here that earlier regarding this controversy, a complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the complainant before the District Forum, Bhiwani in the month of December, 2006. That complaint was allowed by the District Forum vide order dated January 14th, 2008. The opposite parties preferred to file appeal against the order dated January 14th, 2008 before this Commission. The appeal filed before the State Commission was accepted vide order dated November 15th, 2011 on the ground that the District Forum, Bhiwani has no territorial jurisdiction to decide the complaint. Complainant preferred to file revision petition before the Hon'ble National Commission which was dismissed by the Hon'ble National Commission vide order dated December 14th, 2012. The complainant was given liberty to file fresh complaint before the District Forum, Hisar till February 15th, 2013. Thereafter, the present complaint bearing No. 86 of 2013 was filed by the complainant before the District Forum, Hisar on February 14th, 2013.
11. Parties adduced evidence in support of their respective claims before the District Forum.
12. After hearing arguments, vide impugned order dated June 19th, 2017 the complaint filed by the complainant was dismissed on the ground that the complainant failed to prove any manufacturing defect in the vehicle.
13. Aggrieved with the impugned order dated June 19th, 2017, the appellant-complainant has filed the present appeal No.974 of 2017 with a prayer to set aside the impugned order passed by the learned District Forum and to grant relief to the appellant-complainant as prayed in the complaint.
14. We have heard learned counsel for the appellant and perused the case file.
15. It is admitted fact that Tata Indigo LS Diesel Model Euro-II car vehicle bearing registration No.HR-16D-0710, manufactured by opposite party No.1 - Tata Motors Limited, was purchased by the complainant from the opposite party No.2 - Telmos Automobiles Private Limited, for a consideration of Rs.4,64,173/- on May 05th, 2004. It is also admitted fact that the complainant was given warranty for a period of 1½ year or up to coverage of a distance of 50,000 Kms whichever is earlier for repair and replacing the defective parts of the car vehicle free of cost, as per norms and terms. It is also admitted fact that the complainant was provided extended warranty for a period of 18 months or up to the coverage distance of 150000 Kms whichever is earlier on payment of an amount of Rs.4000/- extra. There is also no controversy of any type that during the first 26 months from the date of purchase of the car vehicle, the car vehicle had covered a distance of 35842, from the date of purchase. It is also admitted fact that Dada Motors at Ludhiana, an authorised dealer of Tata Motors Limited refused to repair the car vehicle giving warranty benefits stating that extended warranty had become void as the complainant violated the norms and terms of the warranty. Dada Motors made observations that engine was badly seized and head surface got melt. It was also found that lot of extra wiring were fitted in engine compartment OE wiring harness tampered, fuse box melt, radiator fan, ACC relay fuse melt, temperature, sensor wiring tampered and there was no coolant. Learned counsel for the opposite parties has argued that considering the observations of Dada Motors, Ludhiana also, findings can be given that the complainant was not entitled to get repaired or replaced the defective parts taking benefit of the extended warranty period.
16. From the facts and circumstances as discussed above, it does not appear that the problems were faced by the complainant due to any manufacturing defect in the vehicle. There may be so many reasons of low average regarding fuel consumption of vehicle. Moreover, the plea of the complainant that average of the car vehicle remained 12 KMPL is also not supported by any documentary evidence or test report. Findings cannot be given that average of the car vehicle was only 12 KMPL merely because the plea has been taken by the complainant in his complaint like this. The average of the car depends upon condition of the road, driving skill, quality of fuel, traffic conditions, temperature in atmosphere, use of air conditioner/heater, air pressure in tyres, regular service and maintenance of the vehicle. The average also depends upon the speed of the vehicle and that the vehicle is being driven on a National Highway or on the roads and streets in crowded/thickly populated area.
17. Regarding manufacturing defect, the complainant did not adduce any expert report. Possibilities cannot be ruled out that the complainant had to face so many problems as mentioned in the complaint due to poor handling of the vehicle and other reasons, as mentioned in detail in earlier paragraph of this order. When the complaint was filed second time before the District Forum, Hisar. The General Manager, Haryana Roadways, Bhiwani, vide order dated December 16th, 2016 was directed to appoint an expert mechanical engineer of the workshop to inspect the vehicle in question after notice to both the parties and to submit report. The mechanic of Haryana Roadways, Bhiwani was deputed to report regarding condition of the car, who submitted his report (Annexure R/1), the relevant extract of which is reproduced as under:-
"As far as the question is concerned that whether there was any manufacturing defect in the said car, in this regard it is submitted that as per physical condition of the said car it is very difficult to report that said car has manufacturing defect or not at the time of initial delivery since said car was parked for more than 7 to 8 years. Moreover there is no test bench, testing tools, or any other form of men, machine and material and testing lab available with this workshop which can be helpful in solving the question in concern in the present matter. So, the office of undersigned is not in the position to bring into the notice of the Hon'ble Forum whether there was any manufacturing defect in the said car or not".
18. Mechanic of Haryana Roadways in his report has not given findings regarding any manufacturing defect in the vehicle as the vehicle remained parked for more than a period of 7-8 years and it is very difficult to report that the car vehicle has any manufacturing defect. Apart from it, it will be pertinent to mention here that the complainant did not make any other effort to obtain expert opinion privately himself or by filing an application before the District Forum. The burden to prove manufacturing defect in the vehicle was upon the complainant.
19. As per discussions above in detail, findings cannot be given that it was a case of manufacturing defect in the car vehicle. The complainant is not entitled to receive any amount as claimed in the complaint. It appears that cause of problem being faced by the complainant was poor handling of the vehicle, as discussed in earlier part of this order and the complaint was filed with the intention to get his old vehicle replaced with a new one. We find no illegality or invalidity in the impugned order dated June 19th, 2017 passed by the learned District Forum. Accordingly, findings of the learned District Forum stand affirmed. Hence, the appeal is dismissed being devoid of merits in limine.
Announced:
26.09.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL