State Consumer Disputes Redressal Commission
Tata Motors Limited Through Its Manager ... vs Baba Des Raj Ji Chela Baba Dewa Singh Ji ... on 2 March, 2012
F.A. No. 917 of 2009 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
PLOT NO. 1037, SECTOR 37-A DAKSHAN MARG, CHANDIGARH
First Appeal No. 917 of 2009
Date of institution : 02.07.2009
Date of decision : 2.3.2012
1. Tata Motors Limited through its Manager Legal i.e. Mr. MS Pradeep, 5, Jeewan
Tara Building, Sansad Marg, New Delhi and having its registered office at
Bombay, House No. 24, Homi Mody Street, Mumbai-400001
2. Tata Motors Limited, 11/3, Mathura Road, Badarpur, New Delhi-110044 through
its General Manager/Person Over All in-charge
3. Tata Motors Limited No. 1, Gazipur Patparganj, New Delhi-11096 through its
General Manager/Person Over All Incharge.
...Appellants
Versus
1. Hazoor Maharaj
Baba Des Raj Ji Chela Baba Dewa Singh Ji (Radha Swami), 4-Priya Enclave,
Delhi and presently at 37-A, Green Avenue Amritsar.
2. Cargo Motors
Private Limited, 6, City Centre, GT Road, Amritsar through its General
Manager/Person Over All Incharge.
...Respondent
First Appeal against the order dated 15.5.2009 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President.
Sh. Baldev Singh Sekhon, Member.
Present:-
For the appellants : Sh. P.K. Kukreja, Advocate
For respondent No. 1 : Sh. Kuldeep Singh Chaudhary, Advocate
For respondent No. 2 : Sh. Updip Singh, Advocate
BALDEV SINGH SEKHON, MEMBER
This order will dispose of two appeals bearing F.A. No. 914 of 2009 (Cargo Motors (P) Ltd Vs. Hazoor Baba Des Raj Ji) and F.A. No. 917 of 2009 (Tata Motors Limited and others Vs. Hazoor Maharaj Baba Des Raj Ji and another). These appeals are directed against the same order dated 15.5.2009 passed by the Learned District Consumer Disputes Redressal Forum, Amritsar (in short "District Forum") vide which the complaint of the respondent No. 1 was partly allowed. The facts have been taken from F.A. No. 917 of 2009 and parties have been referred to as per the status in this appeal.
F.A. No. 917 of 2009 2
2. Briefly stated, the facts of the case are that respondent No. 1 Sh. Hazoor Maharaj Baba Des Raj Ji purchased a vehicle, Tata LP 410 Ex Model Euro III, bearing Chassis No. 455061 KTZ 827632, Engine No. 497 SPTC 40 KTZ 888904 from the appellants vide invoice No. 918027551 dated 26.12.2006 for a sum of Rs 5,41,855/-. At the time of purchase of the vehicle, the appellant No. 1 assured that the vehicle in question was the latest model of Tata and this was Euro III vehicle and fully computerized and will give trouble fee service.
3. It was alleged that while returning back after purchasing the vehicle, the engine of the said vehicle became very hot and the vehicle stopped in the way. Thereafter, the vehicle was handed over to the nearest dealer of the appellants namely MG motors at Hissar and the said dealer issued a job card No. JC-MG Motor-HR-0708-00915. At that time the meter reading of vehicle was just 1725 K.M. The dealing person at the workshop told respondent No. 1 that there was a fault in the fuel pump of the said vehicle. He, therefore, changed the fuel engine pump and injector set of the vehicle and also changed engine oil and oil filter and charged Rs. 1390/- and assured that the vehicle in question was O.K. However after running only 10 K.M, the same problem again occurred and the respondent No. 1 approached M.G. Motors. The concerned person of M.G. motors advised that the vehicle in question was Euro-III computerized model and they are unable to detect the defect and advised to take the vehicle to main workshop of Tata Motors at Delhi. Thereafter, with great difficulty, respondent No. 1 approached appellant No. 3 at their workshop and delivered the vehicle at 2486 K.M. reading. Job card No. 002055 dated 1.7.2007 was issued. The vehicle was got checked and error was shown in the vehicle by the computer. The vehicle was returned to respondent No. 1 with the assurance that all the errors have been removed from the said vehicle and now it will give full satisfactory service.
4. It was further pleaded that when respondent No. 1 was returning from Delhi to Amritsar, on the way, the said vehicle again stopped due to same fault i.e. "engine heat up and low pick up" complaint and it reached Amritsar with great difficulty and vehicle was handed over to respondent No. 2, who was the authorized service centre of the appellant No. 1&2. The job card No. 1473 dated 16.8.2007 was issued and at that time the meter was showing reading as 4300 K.M. Respondent No. 2 changed fuel filter F.A. No. 917 of 2009 3 Assay, air cleaner and fuel filter and charged Rs. 720/- and delivered back the vehicle to respondent No. 1.
5. It was further pleaded that thereafter the alleged vehicle started giving the problem i.e. engine heat up and low pick up and vehicle again stopped in the way and the same was handed over to respondent No. 2 on 14.9.2007 at reading of 5073 K.M. Oil filter/fine filter assay and engine oil were changed. Rs. 2227/- were charged from respondent No. 1. Twenty days later, the said vehicle again stopped in the way due to same problem and respondent No. 1 again approached respondent No. 2 on 17.10.2007. Job Card No. 2183 was issued. The concerned man at the workshop told that there was problem in nozzle and FIP was sent to Shahdara, Engineering, New Delhi for checking and rectifying the defects under warranty. However, when nozzles were checked by the Shahdara, Engineering, it was told that there was no fault in the nozzles and FIP. Rather there was some manufacturing defects which lead to low pick up and engine heat up.
6. The respondent No. 2 again checked the fuel engine pump and delivered back the vehicle with the assurance that the vehicle will give satisfactory performance. But all in vain. The said vehicle was again started giving the same problem.
7. Keeping in view the aforesaid facts and circumstances it became quite evident that the vehicle in question suffered from major manufacturing defect and appellants have failed to detect this major defect. The said vehicle had to be taken to the workshop of the appellant for removing the defects for more than 8-10 occasion within a short duration of few months but the defects cannot be rectified. As a result of which the respondent had suffered lots of problems, mental pain, agony, harassment and inconvenience. It was also pleaded that the vehicle was still in warranty period of 12 months from the date of its purchase i.e. 26.12.2006. Respondent No. 1 got his vehicle repaired on 27.6.2007, 2.7.2007, 4.7.2007, 16.8.2007, 14.9.2007 and 17.10.2007, but the appellants failed to detect the manufacturing defect and repair the same.
8. Hence the complaint before the District Forum with the prayer that the appellants be directed either to replace the said vehicle or to refund the amount of said vehicle i.e Rs. 5,41,851.55 along with interest @ 12% per annum and fabrication charges of the vehicle of Rs. 2,50,000/- alongwith compensation to the tune of Rs. 1,50,000/-. F.A. No. 917 of 2009 4
9. Upon notice, the appellants filed joint written statement in which it was pleaded that respondent No. 1 presented a distorted and twisted facts and it was alleged that respondent No. 1 had miserably failed to prove that vehicle in question suffered from any defect albeit manufacturing defect.
10. It was further pleaded that as per information received , the respondent No. 1 had got the body of the vehicle fabricated and was being used as Bus for transportation. Thus the vehicle had been purchased for commercial purpose as such he cannot claim the status of a consumer under the Consumer Protection Act, 1986 and he was not entitled to any relief under the Act. It was further pleaded that respondent No. 1 had not made even a whisper that the vehicle in question was purchased for livelihood purposes. Thus in the absence of specific averment, it is apparent that the vehicle was purchased for commercial purpose and for this very reasons, the complaint ought to be dismissed.
11. It was also pleaded that respondent No. 1 had not filed any documentary proof in support of his contention that the vehicle really had any manufacturing defect. It was submitted that no expert evidence had been adduced by respondent No. 1 to establish any manufacturing defect in the vehicle. It was further submitted that the vehicle was of highest quality and respondents had taken the delivery of the vehicle after his inspection and the vehicle was sold to the entire satisfaction of respondent No. 1.
12. It was categorically stated that respondent No. 1 brought the vehicle in the workshop of the appellants on 1.7.2007 when the problem of poor pick up, check light is on, pollution check and Engine Coolant throwing and temperature comes in red band of meter. The vehicle was thoroughly checked and all the problems were rectified. It was alleged that problem of throwing of coolant arose due to engine radiator fan was fitted by body builder in opposite direction and also due to coolant pipe leakage from additional tapping of engine coolant line taken for air blower in A.C. system. Hence, respondent No. 1 had carried out unauthorized modifications in the vehicle in question. In such situation the warranty became null and void as per the clause 5 of the terms and conditions of warranty which provides as under:-
"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 F.A. No. 917 of 2009 5 procedure, or by any person other than our authorized dealers or their sub-dealers or service centres in any way so as, in our judgment which shall be final and binding, the vehicle or the part has been subjected to misuse, negligence, improper or inadequate maintenance and servicing 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 at our sales or service establishments, our authorized dealers or their sub dealers or service centres."
13. It was vehemently denied that the vehicle in question suffered from any manufacturing defect and that the appellants failed to detect such manufacturing defect. Respondent No. 1 had failed to adduce any expert opinion in support of his bald allegations. The respondent, being a layman and not the qualified technical automobile expert cannot himself judge that the vehicle had any manufacturing defect. Dismissal of the complaint with costs was prayed.
14. Respondent No. 2 (Opposite party No. 4 before District Forum) also filed separate written statement. It was pleaded that respondent No. 1 had not placed on file any such job card as referred to in the complaint and had also not produced the report of Shahadara Engineering. It was submitted that there was no manufacturing defect but trouble, if any, was due to bad driving habit, mishandling and poor maintenance. The vehicle is in a fit road worthy condition. It was also pleaded that whenever the vehicle was brought to the workshop of respondent No. 2, it was properly looked into and the proper service was carried out and the vehicle was got checked from Senior Tata Engineers and no such manufacturing defect as alleged was found.
15. Parties filed their respective evidence by way of affidavits and documents.
16. Learned District Forum, after going through the pleadings of the parties and evidence on record, partly allowed the complaint and the appellants and respondent No. 2 were directed to replace the complete engine of the vehicle of respondent No. 1 with a brand new sealed engine within a period of 45 days. The appellants and respondent No. 2 were directed to pay Rs. 20,000/- as compensation and Rs. 1000/- as litigation expenses for causing harassment.
F.A. No. 917 of 2009 6
17. Aggrieved by the order of the District Forum, the appellants have come up in appeal.
18. Learned counsel for the appellant submitted that respondent No. 1 was having grouse of heat up of engine and low pick up whereas without running the vehicle, respondent No. 1 had allegedly prepared report of Mr. J.S. Malhotra as Ex, C-5 which is in contradiction of the averments of the complaint. It was also submitted that Mr. J.S. Malhotra, B.E. mechanical was not having expert knowledge of the automobiles. Report of Sh. J.S. Malhotra, was repudiated by examining Sukhwinder Singh, Branch Manager of Branch No. 2 but the same was not considered by the District Forum while passing the impugned order. It was further pleaded that the vehicle had covered 9.550 k.m. which clearly indicated that respondent No. 1 had regularly been using the vehicle and the report Ex. C-5 was procured during the pendency of the complaint. But vehicle was not inspected by the said engineer in the presence of the appellants and respondent No. 2. As such the report cannot be treated as correct. The appellants also relied upon the number of judgments of the Hon'ble National Commission in which it was held that the onus to prove defect was upon the complainant and the frequent visits of the vehicle to the workshop not sufficient to prove the defects. The appellants also placed on record the job cards issued by the authorized dealers/service centers of the appellants issued during the repair of the vehicle. Service history of the vehicle was also placed on record. It was prayed that the appeal be accepted.
19. Learned counsel for respondent No. 2 also submitted that the appeal be accepted.
20. However the learned counsel for respondent No. 1 submitted that the vehicle was taken frequently to the workshop of the authorized dealers/service centres of the appellants and on most of the occasions, the defect was reported as low pick up power, heating up of the engine. These defects were not rectified by appellants confirming the existence of inherit to manufacturing defect. The respondent No. 1 also relied upon the report of Sh. J.S. Malhotra, B.E. Mechanical who has categorically stated in the report that the vehicle had low pick up power. There was no change in the position of the radiator fan and over all actual gross weight of the vehicle was 4800 K.G against its rated GUW 5600 Kg. It was specifically mentioned in the report that the radiator fan F.A. No. 917 of 2009 7 has been found fitted O.K. and no leakage was found in the coolant pipe and no loss of coolant was observed from any pipe lines. It was also submitted that respondent No. 1 had repeatedly mentioned during the visit to the workshop that the vehicle had low "pick up power" and its heated up defects have mentioned in almost of the job card prepared by the workshop and the appellants or respondent No. 2 has never given any ground regarding the removal of these defects. As such dismissal of the complaint was prayed.
21. Submissions have been considered. Record has been perused.
22. The appellants have contended that the respondent No. 1/complainant is not a consumer within the term 'Consumer' as defined under section 2(i)(d) of Consumer Protection Act, 1986 because the vehicle purchased by respondent No. 1 had been provided with fabricated body and the same was converted and being used as Bus for transportation. Thus the vehicle is used for commercial purpose and, therefore, complainant cannot claim the status of a 'Consumer'.
23. The respondent No. 1 has contended that he is a religious man and had followers and he usually had to go to attend the Radhaswami Satsang to preach in different cities and as such he purchased Tata LP 410 on 26.12.2006 from appellants for his personal use. It is evident from the Invoice (Ex. C-23) that TATA LP 410 Bus Chasis was purchased by respondent No. 1. Since the chasis of vehicle cannot be put to use as such it is was provided with a fabricated body to convert it into a Mini Bus. It has been specifically pleaded by respondent No. 1 that the vehicle was being used to visit different places to preach. There is no evidence to show that the vehicle was actually used for commercial purpose and not for personal use. Hence the respondent fell within the definition of term 'consumer'.
24. Now the only question for adjudication before us is if the engine of vehicle under question was having any manufacturing defect and if the appellants are liable to replace the same.
25. The respondent No. 1 has vehemently contended that the vehicle was in fact having inherent manufacturing defect because symptoms to this effect appeared on the date of purchase itself. It is stated after the purchase, when he was returning back, the engine of the vehicle became very hot and it stopped in the way. The vehicle was handed over to M/s MG. Motors at Hissar (authorized dealer of the appellants) and Job F.A. No. 917 of 2009 8 Card No. JC-MG-Motor HR-0708-00915 was issued. Fault of fuel pump was reported which was changed alongwith injector set. Engine oil and Engine oil filter were also changed. But the same defect again appeared after 10 K.M. and respondent No. 1 again approached M/s M.G. Motors. However concerned man said that they are unable to detect the defect and therefore advised that vehicle be taken to main workshop of Tata Motors at Delhi. It is thus confirmed that the problem of heating up of engine was existing even before the fabrication of the body on the chasis and before carrying out any modification to the vehicle.
26. Accordingly the vehicle was taken to workshop of appellant No. 3 in Delhi and Job Card No. 002055 dated 1.7.2007 was issued (Ex. R-5/13) and vehicle was repaired. In this job card it is mentioned as "Turbo charger intake pipe collapse with A.C. Compressor. It is due to this intake flow decreases. Radiator fan is fitted on opposite direction due to this engine overheats."
27. Scrutiny reveals that these remarks are added "by hand" on the job card generated by computer and same is not possible. Moreover Respondent No. 1 had been pointing out the defects time and again. In all other computer generated job cards no such hand written remarks are found, confirming that this document is subsequently tempered with and, thus, cannot be considered as evidence.
28. Thereafter, the vehicle was frequently taken to various authorized workshops/service stations of appellants for same fault i.e. low pick up and engine heating up. The appellants have themselves placed on record the Job Cards of following dates.
Job Card No. Date Place
002055 1.7.2007 Delhi
002115 4.3.2007 Delhi
001473 16.8.2007 Amritsar
001794 14.9.2007 Amritsar
002184 17.10.2007 Amritsar
002851 15.12.2007 Amritsar
003816 24.3.2008 Amritsar
F.A. No. 917 of 2009 9
29. The close scrutiny of these job cards reveals on all the occasions, when the vehicle was brought to the authorized dealer/service station of the appellant, the defects pointed out by the respondent No. 1 included "poor pick up, pulling power low and engine overheating". These defects are recorded in the column meant for customer complaint/customer version in the job cards. However, in the Action Taken Coloumn, no remarks have been given by the service engineer/mechanic with regards to these defects whether these defects were non existent or whether these were rectified. All these job cards relate to the period when vehicle was under warranty. The appellants were duty bound as per terms of warranty to rectify the defect or to replace the defective parts. The appellants have also placed on record the "Service History" of the vehicle as Ex. R-6, scrutiny of which also reveals that defects pertaining to the low pulling power low pick up and engine over heating have been repeated regularly confirming that appellants have failed to set right these specific defects. Fact remains that inspite of repeated visits of the vehicle to authorized dealers/service centres, its major defects pointed out by respondent No. 1 persisted. It only confirms that these are attributed to inherent manufacturing defect in the engine of the vehicle which could not be repaired by appellants or respondent No. 2.
30. The respondent No. 1 has placed on record the report of Sh. J.S. Malhotra, B.E. (Mech) as Ex. C-5 as report of an expert. This report is supported by the affidavit of Sh. J.S. Malhotra (Ex. C-4). This report was prepared after detailed inspection of the vehicle and the expert has attributed the persistence of problem of low pick up, engine over heating to the inherent manufacturing defect in the engine. Relevant portion of report is reproduced-
1. The engine is giving excessive smoke though the vehicle has run for 9550 K.Ms. only and the engine is BS III.
This may be due to the fact that the engine is weak and complete combustion is not taking place and it is exhaling unburnt carbon/gases.
2. The pickup of the vehicle is very low and it is unable to climb gradient road even after replacement of injector set as well as twice replacement of fuel injector pump in warranty.
F.A. No. 917 of 2009 10This is due to fact the engine is unable to generate power required for smooth running of the engine.
3. The actual vehicle gross weight is 4800 Kgs only against its rated GUW 5600 Kgs. But it is unable to catch speed and take the load of A.C. This is due to the fact that the performance of engine is not upto the mark and it is unable to generate power & has inherent defects.
4. The performance of the engine is very poor and below average. Its fuel consumption is 5-6 K.M./Ltr. Only.
This is due to the fact that it has inherent defects and is not proper designed.
5. The radiator fan has been found fitted OK and in order.
6. No leakage has been found in coolant pipe and no loss of coolant was observed from any pipe line.
In my opinion these defects are inherent in nature and are irrepairable.
31. The report states that the gross weight of vehicle is 4800 k.g. only against its rated GUV 5600 k.g. conveying that no additional load/burden was put on the engine of the vehicle by the respondent No. 1 on account of fabrication of body. 32 The appellants have not rebutted this report of the expert by any other cogent independent evidence.
33. The appellants have, however, filed an affidavit of Sh. Sukhwinder Singh, Branch Manager of Cargo Motors as Ex. R-3. In this affidavit, it is deposed that the vehicle was inspected by Service Engineers of manufacturing company under the supervision of Mr. Vineet Pahwa, the then General Manager Service and his team. Evidently this evidence of the Branch Manager of appellants being interested witness, is not reliable. Moreover the inspections was of vehicle was reportedly done by Service Engineers of Manufacturing company and not by the deponent himself. Neither their report is placed on record nor evidence of the Mr. Vineet Pahwa has been led. Admittedly this affidavit from an employee of appellant is not an independent witness and, infact, is a procured piece of evidence and, therefore, has no evidence value. F.A. No. 917 of 2009 11
34. The appellants have strongly contended that the respondent No. 1 has made unauthorized modifications in body and body builder has fitted the fan of radiator in reverse direction due to which the problem of heating up of engine has cropped up. In such situations warranty becomes null and void as per clause 5 of terms and conditions.
35. As noticed above the problem of heating up existed in the vehicle even prior to the fitting of body on the chasis of vehicle. Moreover, Sh. J.S. Malhotra in his report referred above has categorically stated that radiator fan has been found fitted OK. And there was no leakage in the coolant pipe. Moreover the appellants are relying upon, the remarks which were entered in Job Card dated 1.7.2007. These remarks have actually been added by tempering with job card by making hand written comments in the otherwise computer generated document. Such remarks about the unauthorized modification have not been mentioned in any other job card in spite of the fact that the respondent No. 1 had repeatedly mentioned about these defects in the same job cards. Moreover the appellants sold only the chasis of the vehicle and vehicle can be put to use after fixing the body of the chasis. Appellants are only manufacturers of the TATA vehicles and they are not, themselves, fabricator of body for vehicles. Therefore, fixing of body on the chais from other fabricators does not necessarily constitute unauthorized modification specially when there is no confirmed report specifying that such modification has adversely affected the working of the engine of the vehicle. In fact the report of Mr. J.S. Malhotra is to the contrary.
36. In view of the above findings and discussion, it is held that there was an inherent manufacturing defect in the engine of vehicle which could not be rectified and therefore replacement of engine is absolutely necessary. However, during the course of arguments, it was brought to the notice of this Commission that the respondent No. 1 has, during pendency of appeal, sold the vehicle to a third party. Accordingly it is ordered that instead of replacing the engine, the appellants should pay a consolidated compensation (including cost of engine and other costs) of Rs. 2,50,000/- to respondent No. 1. The impugned order of the District Forum is modified to that extent and the appeal of the appellants is disposed of.
37. The appellants have deposited Rs. 11,500/- at the time of filing of the appeal on 2.7.2009. The amount of Rs. 11,500/- alongwith interest, if any, be sent to the F.A. No. 917 of 2009 12 appellants by way of crossed cheque/bank draft after expiry of 45 days. However the compensation ordered above in Para No. 36 shall be paid by the appellants to the respondent No. 1 within period of one month from the receipt of the copy of the order. F.A. No. 914 of 2009
38. For the reasons recorded in F.A. No. 917 of 2010, this appeal is also disposed of.
39. The appellants have deposited Rs. 10,500/- at the time of filing of the appeal on 2.7.2009. The amount of Rs. 10,500/- alongwith interest, if any, be sent to the appellant by way of crossed cheque/bank draft after expiry of 45 days. However compensation ordered above shall be paid by the appellants to the respondent No. 1 within period of one month from the receipt of the copy of the order.
40. The arguments in these cases were heard on 16.2.2012 and the order was reserved. Now parties be communicated about the same.
41. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (BALDEV SINGH SEKHON)p0 MEMBER March 2, 2012.
Rupinder F.A. No. 917 of 2009 13