National Consumer Disputes Redressal
Tata Motors Ltd. vs Deepak Goyal & Ors. on 30 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2309 OF 2008 (Against the order dated 4.2.2008 in Appeal No. FA-427/2006 of State Commission, Delhi) Tata Motors Ltd. (previously known as Tata Engineering & Locomotives Co. Ltd.) Through its Legal Manager Jeevan Tara Building 5, Sansad Marg New Delhi-110001. Petitioner/Opp. Party Versus 1. Deepak Goyal Prop. of M/s. Fab Yarn Inc. Shop No. 17, Ist Floor Jaipuria Building 841, S.P. Mukherjee Marg Delhi-110 006. Respondent/Complainant 2. HIM Motors Pvt. Ltd. D-9, Udyog Nagar Rohtak Road Delhi-110 083. Respondent/ O.P. No.2 3. M/s. Autolink Enterprises (P) Ltd. 60, Rama Road Najafgarh Industrial Area New Delhi-110 015. Respondents/O.P. No. 3 BEFORE : HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER -2- For the Petitioner : Shri Aditya Narain, Adv. Shri Aakarshan Sahay, Adv. Ms. Anushree Narain, Adv. For Respondent No. 1 : In person For Respondent No. 2 &3 : Exparte Pronounced on 30th January, 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
1. This revision petition has been filed by the petitioner against order dated 4.2.008 passed by State Commission in Appeal No. FA-427/2006- Tata Motors Limited Vs. Deepak Goyal & Ors. by which while allowing appeal partly, order of the District Forum allowing complaint was upheld but compensation awarded was set aside.
2. Brief facts of the case are that complainant/respondent No. 1 purchased Tata Indigo Diesel LX version- No. DL-4CU-2168 in the name of his sole proprietary Firm- M/s. Fab Yarn Inc. from opposite party No. 2/respondent No. 2- Dealer of opposite party No. 1/petitioner on 2.7.2003 for Rs. 5,02,517/-. After taking delivery of the vehicle, complainant faced problems and from 6.7.2003 to 13.4.2005 left his vehicle 15 times for repairs with M/s. Mirkana Engg.
Pvt. Ltd.- workshop and also obtained the extended warranty on 24.9.2004 after paying Rs. 3,625/-. It was further submitted that -3- he left his vehicle for repairs with M/s. Sanya Automobiles (P) Ltd. six times from 8.9.2004 to 3.8.2005. Complainant had to face problems such as noise from rear, clutch related problem, abnormal level of engine oil consumption, engine temperature rises to abnormal level, lack of engine power, air-conditioning, etc. Alleging deficiency on the part of opposite parties, complainant filed complaint before District Forum.
Opposite party No. 1 & 2 resisted complaint and submitted that vehicle had run more than 65,000 kms within a span of two years and there was no manufacturing defect in the vehicle. It was further submitted that vehicle was repaired on 13.4.2005 on account of accident and no manufacturing defect or inherent defects were found in the vehicle. Few defects developed because of day to day running of vehicle, faulty driving and bad road conditions and prayed for dismissal of complaint.
Opposite party No. 3 did not appear and he was proceeded exparte. Learned District Forum after hearing both the parties allowed complaint and observed that complainants vehicle was defective with manufacturing defects and directed opposite party to replace the vehicle with a new vehicle with fresh warranty and refund of Rs. 3,625/- paid towards purchase of extended warranty and further directed to refund Rs. 30,000/- towards repair of the car and allowed compensation of Rs. 30,000/- and litigation cost of Rs. 3,000/-.
Appeal filed by opposite party No. 1 was partly allowed by Learned State Commission vide impugned order and opposite party was directed to refund cost of vehicle instead of replacement of vehicle and set aside compensation of -4- Rs. 30,000/- awarded by District Forum against which this revision petition has been filed.
3. None appeared for respondent No. 2 & 3 and they were proceeded ex-parte.
4. Heard Learned Counsel for petitioner and respondent No. 1 in person and perused record.
5. Learned Counsel for petitioner submitted that in spite of no proof of manufacturing defect in the disputed vehicle, Learned District Forum committed error in allowing replacement of vehicle and Learned State Commission even without appeal of complainant, further committed error in allowing refund of cost of the vehicle, hence, revision petition be allowed and impugned order be set aside. On the other hand, respondent submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.
6. It is not disputed that complainant purchased vehicle from opposite party No. 2 in the name of his sole proprietary Firm. As per complainant and job cards, complainant got repaired his car from M/s. Mirkana Engg. Pvt. Ltd. for 15 times from 6.7.2003 to 13.4.2005 and from M/s. Sanya Automobiles (P) Ltd. from 8.9.2004 to 3.8.2005 for 6 times.
7. Now the core question to be decided is whether there was any manufacturing defect in the vehicle warranting replacement/ refund of price?
-5-8. Learned Counsel for petitioner submitted that merely because vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in the absence of expert evidence as held by this Commission in 1 (2010) CPJ 235 (NC)- Classic Automobiles Vs. Lila Nand Mishra & Anr.
Perusal of job cards reveals that, apparently, complaints made in job cards does not come within the purview of manufacturing defect but it appears that repairs were required on account of excessive running of the vehicle, road conditions and manner of driving the vehicle. Merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects particularly when the vehicle had run more than 56,000 kms in a short span of one year as evidenced by bill dated 30.7.2004 of M/s. Mirkana Engg. Pvt. Ltd. in which mileage has been shown as 56874 kms. Perusal of job cards further reveals that on 13.11.2003, mileage of the vehicle was 5364 kms whereas on 25.11.2003, mileage of vehicle was 11131 kms, meaning thereby, vehicle had run about 5800 kms in a short span of 12 days. Had there been any manufacturing defect in the vehicle, vehicle could not have run 5800 kms in 12 days and more than 56,000 kms in a period of one year. Respondent has not placed any report of expert to substantiate the argument that there was manufacturing defects in the vehicle. In the absence of any expert report and as vehicle had run more than 56000 kms in one year and by this time, it would have run lakhs of kms as vehicle was purchased before 11 years, by no stage of imagination, it can be inferred that there was any -6- manufacturing defect in the vehicle. Learned Counsel for petitioner has placed reliance on judgment of this Commission dated 7.5.2010- Sushila Automobiles Pvt. Ltd. through its Manager Shri Kamlesh Kumar Singh Vs. Dr. Birendra Narain Prasad & Ors., in which judgment of Surendra Kumar Jain Vs. R.C. Bhargava & Ors. reported in III (2006) CPJ 382 (NC) was referred and observed that even if vehicle has been taken to workshop for 11 times for removing minor defects, it cannot be said to be a manufacturing defect. Learned State Commission in para 9 of the impugned judgment has wrongly observed that the onus to prove that vehicle does not suffer from manufacturing defect, shifts to the manufacturer for the purpose of replacement of vehicle because burden was on the complainant to show that vehicle was suffering from manufacturing defects. A vehicle with manufacturing defect cannot run lakhs of kms and running of lakhs of kms by disputed vehicle proves that there was no manufacturing defect in the vehicle and Learned District Forum committed error in allowing replacement of the vehicle and Learned State Commission further committed error in allowing refund of price without any appeal on behalf of complainant.
9. Respondent in his written submissions submitted that he is running a small yarn agency business and using car only for his personal use and vehicle is not used for commercial purpose. Apparently, this submission is not correct because a person having small yarn agency business will not run vehicle 5000kms a month and it appears that vehicle was used for commercial purposes.
-7-10. Respondent in his written submissions submitted that no action was taken over by petitioner to rectify problem of high engine oil consumption and engine over-heating which was very dangerous risking the lives of passengers travelling in the car.
Respondent has not placed any data on record to substantiate that there was high engine oil consumption and engine was over-heating.
If engine was over-heating and travelling in the vehicle was risky, respondent should have avoided use of the vehicle whereas respondent was running vehicle more than 56000 kms in a year which itself shows that there was no over-heating of the engine. Even if, there was any over-heating of the engine or high engine oil consumption or over-heating defects, they were removed by the workshop as and when respondent approached to the workshop. Had these defects not being removed, respondent would not have taken delivery of vehicle from the workshop.
11. Respondent has not impleaded M/s. Mirkana Engg. Pvt. Ltd. and M/s. Sanya Automobiles Pvt. Ltd. as opposite party in the complaint from where he got his vehicle repaired time to time. He should have impleaded both the workshops as opposite party who could have replied whether there were any manufacturing defects in the vehicle and whether defects reported by respondent at the time of handing over vehicle for repairs were duly rectified or not.
12. In the light of aforesaid discussion, it becomes clear that complainant failed to prove that there was any manufacturing defect in the vehicle and in such circumstances, there was no question of -8- replacement of the vehicle by new vehicle or refund of price of the vehicle.
13. It is not disputed that respondent had taken vehicle to workshop for more than 20 times in a span of two years. It would be appropriate to grant some compensation to the respondent for mental agony and harassment suffered by him for getting his vehicle rectified/ repaired from time to time. In such circumstances, compensation of Rs. 50,000/- should be awarded to the respondent.
14. Consequently, revision petition filed by the petitioner is partly allowed and order dated 4.2.2008 passed by Learned State Commission in Appeal No. FA-427/2006- Tata Motors Limited Vs. Deepak Goyal & Ors. and order dated 10.4.2006 passed by District Forum in Complaint No. 499/2005- Deepak Goyal Vs. M/s. Tata Engineering Customer Support Units & Ors. is set aside and modified and petitioner alongwith respondent No. 2 are jointly and severally directed to pay Rs. 50,000/- as compensation to respondent No. 1 on account of harassment and mental agony. There shall be no orders as to costs.
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( K.S. CHAUDHARI, J. ) PRESIDING MEMBER Mk/court4/-