State Consumer Disputes Redressal Commission
Tata Motors Ltd. vs Smt. Bhagirathi Devi on 12 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
First Appeal No. 87 / 2015
Tata Motors Ltd.
Regional Office, Jeevantara Building 5
Parliament Street, New Delhi
......Appellant / Opposite Party No. 2
Versus
1. Smt. Bhagirathi Devi W/o Sh. Suresh Singh Khetwal
R/o Tyunara, Patti Tall Katyur
Patralaya and District Bageshwar
.......Respondent No. 1/ Complainant
2. Manager,
Commercial Motors
Bareli Road, Haldwani, Nainital
.......Respondent No. 2 / Opposite Party No. 1
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. Gaurav Sharma, Learned Counsel for Respondent No. 1
Sh. B.K. Tyagi, Learned Counsel for Respondent No. 2
Coram: Ms. Kumkum Rani, Judicial Member II
Mr. Bhagwat Singh Manral, Member
Dated: 12/08/2022
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 read with Section 17 of the Consumer Protection Act, 1986 against the judgment and order dated 20.04.2015 passed by the District Consumer Disputes Redressal Forum, Bageshwar (hereinafter to be referred as the District Commission) in consumer Revision Petition No. 16 / 2019 2 complaint No. 11 of 2010 styled as Smt. Bhagirathi Devi vs. Manager, Commercial Motors and another, wherein and whereby the District Commission has awarded Rs. 1,70,000/- as compensation occurred due to mechanical and financial loss within one month, to be paid to the complainant by opposite party No. 2 (Tata Motors Ltd.), in default the opposite party No. 2 will have to pay interest @ 8% on the awarded amount.
2. We have heard learned counsel for the parties and perused the material placed before us.
3. Learned counsel for the appellant - Tata Motors Ltd. has alleged that the impugned judgment is patently erroneous, factually wrong, legally perverse, arbitrary, capricious and is without jurisdiction, which is totally based on surmises and conjectures and without any reasoned finding and as such, is liable to be set aside. It is further argued that the District Commission has erred in holding that the respondent No. 1 - complainant has a consumer as per the explanation under Section 2(d) of the Act and has not gone through the written statement filed by the opposite parties as well as the affidavit and evidences filed by them. It is also argued that the District Commission has erred in not considering the fact that the District Commission has no territorial jurisdiction to try the present complaint since none of the opposite parties existed within its territory nor worked for gain and even no part of cause of action has arisen within its territory. It is further alleged that the vehicle in question was in perfect running condition and as per the own admission of the respondent No. 1 - complainant, had run continuously for more than four years, without any trouble and had run for more than 23000Kms., which shows that there was no manufacturing defect in the vehicle and the appellant should not be made liable for the awarded amount. There was neither any deficiency on the part of the First Appeal No. 87 / 2015 3 appellant nor any unfair trade practice existed against the appellant; even no notice has ever been sent to the appellant, but the District Commission has wrongly made the appellant liable towards the awarded amount. It is further stated in the grounds of appeal that the District Commission has failed to consider that the vehicle was solely driven, controlled and managed by the employees of the respondent No. 1 - complainant and the same was mismanaged by them and for their negligence and carelessness, the appellant should not have been made liable and even on a very vague claim of less mileage and which is based on various aspects of driving habits, conditions of road and various other factors, which in the present case, admittedly, the vehicle was being run on hilly terrain of Bageshwar, Uttarkhand without any expert evidence, the finding was clearly vague, therefore, this Commission be pleased to call for the record of the case and allow the appeal with cost throughout and set aside the impugned judgment.
4. We have gone through the complaint and written statement available on record. From the pleadings, it is an admitted fact that the complainant has purchased a Pick-up vehicle No. UK04-CA-0437, hereinafter to be referred as to vehicle in question from the opposite party No. 1 - Respondent No. 2 from Haldwani, District Nainital.
5. The learned counsel for the appellant has vehemently argued that the learned District Commission has erred in not considering that it had no territorial jurisdiction to try the present complaint, since none of the opposite parties existed within its territory, nor worked for gain and even no part of cause of action had arisen within its territory, hence the District Commission below has no jurisdiction to entertain the complaint. In reply, the learned counsel for respondent No. 1 - complainant has stated that although the opposite parties do not work for gain or carry on business at First Appeal No. 87 / 2015 4 Bageshwar, but they sells the vehicle all over Kumaun Region from Haldwani, hence, the District Commission, Bageshwar was fully competent to entertain the complaint.
6. From the submission made by both the parties to the appeal, it is crystal clear that the opposite parties had neither any office at Bageshwar, nor reside and nor carry on business from Bageshwar.
7. The learned counsel for the appellant has referred to "Civil Appeal No. 1560 of 2004, Sonic Surgical vs. National Insurance Company Ltd., Supreme Court of India" in support of his contention.
8. In the case of Sonic Surgical (supra), the Hon'ble Apex Court has held that "In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint."
9. But in the case of Santa Banta Com. Limited & Anr. Vs. Porsche Cars & Ors. I (2014) CPJ 516 (NC), it has been held, which is reproduced as under:-
"14. Having considered the matter in the light of the afore-said principle, we are unable to hold that in the present case not even a part of cause of action had arisen at Chandigarh. Although the First Appeal No. 87 / 2015 5 sales contract does not mention the place where the same was executed but other contemporaneous circumstances like confirmation of payment by the branch of the finance company at Chandigarh, issue of cheques towards monthly installments in favour of the finance company at Chandigarh do tend to support the averments that a part of the cause of action had arisen at Chandigarh. At this stage, there is no reason to disbelieve the version of the Appellants that cheque dated 30.07.2008 of `5.35 lacs, towards initial payment, drawn on Citi Bank N.A. Sector 9, Chandigarh in favour of Respondent No. 3 (the dealer) at the time of signing of the sales contract was not issued at Chandigarh. In our view, in the light of the facts pleaded in the Complaint, a part of cause of action did arise at Chandigarh conferring jurisdiction on the State Commission at Chandigarh.
15. As regards the decision of the Supreme Court in Sonic Surgical (supra), on which reliance has been placed in the impugned order, it is clearly distinguishable on facts. In that case, insurance policy had been taken at Ambala; the fire broke out in godown at Ambala and claim for compensation was also made at Ambala, which, as noted above, is not the case here. In the light of those facts it was held that no cause of action arose at Chandigarh, where the complaint under the Act was filed.First Appeal No. 87 / 2015 6
16. For the foregoing reasons, the appeal succeeds and is hereby allowed with no order as to costs. The impugned order is set aside and the complaint is restored before the State Commission, UT, Chandigarh for being decided on merits. The State Commission is requested to dispose of the complaint as early as possible."
10. In the light of the above cited case law, we have gone through the records; neither any sale contract mentioning the place, where it was executed, nor has any initial cheque (photostat copy) been filed towards of monthly installments in favour of any financial company at Bageshwar, nor the copy of insurance policy initially taken at Bageshwar regarding the vehicle in question has been submitted by the respondent No. 1 - complainant in order to show that a part of cause of action has ever arisen at Bageshwar.
11. Thus, we are of the view that the District Commission, Bageshwar has no territorial jurisdiction to entertain the complaint of the respondent No. 1 - complainant.
12. The learned counsel for the appellant has further submitted that the respondent No. 1 - complainant is not a 'consumer', as per the explanation under Section 2(d) of the Consumer Protection Act, 1986, since the vehicle in question is a commercial vehicle and has been purchased for commercial profits, hence the respondent No. 1 - complainant cannot claim the status of a 'consumer'.
13. The respondent No. 1 - complainant has neither filed any rebuttal / replication rebutting the above plea, nor has filed any loan paper showing First Appeal No. 87 / 2015 7 that loan for the vehicle in question was availed of by the respondent No. 1
- complainant for earning livelihood by means of self-employment.
14. The learned counsel for the appellant has drawn our attention to a cited case law Delhi Transport Corporation Employees Provident Fund Trust vs. Orissa Small Industries & Anr., III (2007) CPJ 316 (NC), wherein the Hon'ble National Commission has held as under:-
"Bare reading of the Explanation would show that unless the service is hired, or availed of for earning livelihood by means of self-employment, it will fall within the meaning of 'commercial activity'. Intention in investing hefty amount of Rs. 6 crores in the bonds issued by opposite party No. 1 by the complainant was to earn higher rate of interest of 13.75% p.a. and this would obviously fall within the definition of 'commercial purpose/activity' within the meaning of said definition. By no stretch of imagination, the complainant can be said to be a 'consumer'. Complaint is, thus, not legally maintainable under the Act."
15. The above law is applicable to the case in hand. In the complaint, nowhere is specially mentioned that the vehicle in question was purchased by the respondent No. 1 - complainant for earning livelihood by means of self-employment. On record there is no cogent evidence in this regard that the vehicle in question was not purchased for commercial purpose.
16. Hence, it is proved that as per the above cited case law, the respondent No. 1 - complainant is not a consumer to file the complaint in the matter in hand.
First Appeal No. 87 / 2015 817. In the complaint, the respondent No. 1 - complainant has alleged that the vehicle in question had a manufacturing / technical defect and after several efforts it could not be repaired by the opposite parties of the complaint. The learned counsel for the opposite party No. 2 / appellant has argued that no expert evidence / opinion was submitted by the respondent No. 1 - complainant to establish any manufacturing defect in the vehicle in question. In support of his contention, the learned counsel has drawn our attention to the following cited case laws:-
1. Gopal Aggarwal vs. Metro Motors & Anr., Tata Motors, I (2020) CPJ 85 (NC)
2. Classic Automobiles vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC)
3. Tata Motors Ltd. vs. Manoj Gadi & Anr., II (2014) CPJ 665 (NC)
4. Rajiv Gulati vs. Tata Engineering & Locomotive Company Ltd. & Ors., III (2013) CPJ 273 (NC)
18. In the case of Gopal Aggarwal (supra), the Hon'ble National Commission has held as under:-
"When 'defect' in the Car, in its manufacture, was alleged, the District Forum was required to refer the Car to a laboratory or organization as defined under Section 2 (1) (a) (i) or (ii) or (iii).
Here we may add that, if, due to any reason, it was not feasible for the District Forum to refer the Car to a laboratory or organization recognized by the Central or the State Government under Section 2 First Appeal No. 87 / 2015 9 (1) (a) (i) or (ii), it was still feasible for it to take recourse to Section 2 (1) (a) (iii) and refer the vehicle to a government financed or aided laboratory or organization having the requisite expertise and technical wherewithal for the purpose, as, for example, a government financed or aided Institute or College of Engineering or Technology, whose repute & expertise speaks for itself, and whose report would pass credence in scrutiny.
That is to say, the (non) proximal availability etc. of a Central or State Government recognized laboratory or organization under Section 2 (1) (a)
(i) or (ii) should not be (and cannot be) an excuse for not putting the Car to test. Recourse to Section 2 (1) (a) (iii), with the due awareness and the due application of mind, was always feasible.
The State Commission has rightly concluded that 'defect' in manufacture cannot be made out.
The conclusion arrived at by the State Commission in its appraisal is reproduced below:
"The facts of the instant case are fully attracted to the case cited above being on similar footings. Admittedly, till the date the vehicle was last attended by the engineers of the opposite parties, it had covered about 61000 Kms as per the last job card maintained by the opposite parties. Had there been any manufacturing defect in the First Appeal No. 87 / 2015 10 vehicle, it could not have run 61000 Kms. Thus, it cannot be said that there is any manufacturing defect in the vehicle. The reports of Rakesh Kumar, Automobile Engineering Diploma Holder and Krishan Lal, Mechanic (having no diploma or degree in Automobile Engineering) are not the conclusive proof of manufacturing defects because both these witnesses are interested persons as they were engaged by the complainant without the consent of the opposite parties and without any orders by the District Consumer Forum, though the reports were given after filing of the complaint without associating the appellants-opposite parties. Thus these reports are of no significance."
19. In the case of Classic Automobiles (supra), the Hon'ble National Commission has held as under:-
"14. It has been observed that the car was brought for repairs / rectifications repeatedly within the warranty period which shows that there was a manufacturing defect. Manufacturing defect would be a defect without which the car cannot function. There was no complaint regarding the functioning of the engine of the car. The only problem was that the "check light" glowed on the indicator panel even during its normal running which was explained to the complainant / respondent No. 1. This defect cannot be termed as manufacturing defect with which the car could not First Appeal No. 87 / 2015 11 run. Glowing of "check light" cannot be termed as a manufacturing defect.
15. The onus to prove that there was manufacturing defect was on complainant/ respondent No. 1. We agree with the contentions raised by the learned Counsel for the petitioner that complainant / respondent No. 1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(1)(c)of the Consumer Protection Act, 1986 which provides as under:
"(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt First Appeal No. 87 / 2015 12 of the reference or within such extended period as may be granted by the District Forum."
16. The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect. In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs / rectifications, it cannot be held that there was a manufacturing defect in the car. Whenever the car was brought to the service station, it was attended to by the petitioner. The petitioner is the service provider of the car and Counsel for complainant/ respondent No. 1 was unable to show any deficiency on the part of the petitioner in attending to the car whenever it was brought to the petitioner's service station."
20. In the case of Tata Motors Ltd. (supra), the Hon'ble National Commission has held as under:-
"6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission vide impugned order directed that the petitioner should refund the cost of the vehicle on the return of the vehicle after completing the formalities of transfer of registration certificate in the name of the petitioner. Under the present circumstances, when the vehicle has already been First Appeal No. 87 / 2015 13 sold by the complainant/respondent no. 1, the execution of the order passed by the State Commission is not possible, because the vehicle no longer remains with the complainant.
7. The complainant/respondent tried to explain his action of selling the vehicle saying that he had to sell the same as the vehicle, being old, was getting rusted.
8. It may be observed that it may not be possible for the owner of a vehicle to retain the same for indefinite period or till the proceedings pending in the courts are finalised. The Transport Authorities also do not provide the registration certificate or fitness certificates beyond a particular age of the vehicle. It can also be stated that the status of complainant as consumer, vis-a-vis, the OPs has to be considered on the day of the cause of action or filing of the complaint and a person may not lose that status merely because of the sale of the vehicle due to any reason. However, in the current case, the facts and circumstances show that the respondent should not have sold the said vehicle during the pendency of the proceedings before the National Commission. As observed above, it is not possible to have the order of the State Commission executed because the vehicle no longer remains with the petitioner. The factum of any manufacturing defect being there or not, can also not be ascertained by any expert evidence at First Appeal No. 87 / 2015 14 this stage. In the case of Rajiv Gulati versus M/s. Tata Engineering & Locomotive Company Ltd. & Ors. (supra), it has been clearly stated that when the vehicle had been sold, it was not possible to establish by cogent evidence that it suffered from any manufacturing defect. In this very case, it has been observed that the depreciated value of the vehicle is presumed to be less than the sale- consideration.
This may not be the position in the present case but still, the complainant should have sought the permission of the court before selling the vehicle."
21. In the case of Rajiv Gulati (supra), the Hon'ble National Commission has held as under:-
"That the vehicle was got checked by the Govt. Approved Surveyor, who has opined inter-alia that there is a major defect in the Power Steering System either in the Pump Assembly or in the Steering Box and it had to be immediately rectified for the safety drive."
The principles as laid down are applicable to the case in hand.
22. In the complaint, the respondent No. 1 - complainant has neither filed any expert report as to what technical defects occurred in the vehicle in question, nor has produced the vehicle in question by the respondent No. 1 - complainant for the purpose for sending it for expert report before any laboratory on account of sale of the vehicle in question.
First Appeal No. 87 / 2015 1523. Moreover, when the vehicle had run for more than 23000KMs, which is in itself suffice to establish that there had been no technical defect in the said vehicle and in absence of the same, such plea of the respondent No. 1 - complainant is not tenable / sustainable to make the appellant liable to pay the sought amount.
24. The learned counsel for the appellant has also argued that the District Commission has erred in not considering the fact that as per the operator's service book and warranty procedure, the respondent No. 1 - complainant was merely entitled for repair / replacement of defective parts and not otherwise for remote / accrued losses, but awarding the costs of the diesel to a sum of Rs. 1,09,550/- and Rs. 30,000/- for losses to be accrued in future on the pretext for giving less mileage and same could have run for one lakh kilometers is totally baseless. The above arguments are appealable as the vehicle had run for more than 23000KMs. Apart from it, the mileage of the vehicle in question depends on various factors. If the vehicle is being run by one or more drivers roughly, negligently, rashly, without care and caution, theses aspects also could be a reason for giving less mileage.
25. Besides it, if the vehicle in question is being run on a very dilapidated rough road or on hilly route like Pithoragarh, Champawat, Bageshwar, Chamoli, Almora, Tehri & Pauri Garhwal Districts of the State of Uttarakhand, then the vehicle in question will definitely give very less mileage.
26. On record, there is no such cogent evidence or any copy of the advertisement wherein the company has advertised and shown the average / mileage of the vehicle in question as 10KMs per liter (diesel or petrol).
First Appeal No. 87 / 2015 1627. Thus, the respondent No. 1 - complainant has failed to prove her case that there had been less mileage of the vehicle in question due to technical / manufacturing defect.
28. In such circumstance, we are inclined to interfere with the impugned judgment, the impugned judgment in perverse, without jurisdiction & without any reasoned finding, hence it is liable to be set aside. We hold that the appeal is liable to be allowed.
29. Accordingly, the appeal is allowed. The impugned judgment and order dated 20.04.2015 is hereby set aside and the complaint case shall stand as dismissed. No order as to costs. Statutory amount deposited by the appellant be returned to the appellant.
30. A copy of this judgment be uploaded forthwith on the website of the Commission for perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
31. Appeal file be consigned to record room alongwith a copy of this Judgment.
(B.S. MANRAL) (MS. KUMKUM RANI)
First Appeal No. 87 / 2015