State Consumer Disputes Redressal Commission
Tata Motors Limited vs Ashwani Setia on 26 November, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 26.11.2007 Appeal No.07/751 (Arising from the order dated 08.08.2007 passed by District Forum(East) Saini Enclave, Delhi in Complaint Case No.03/2007 Tata Motors Limited .. Appellant. Unit No.305, Signature Tower through Mr. Tarun Banga, Tower-B, 2nd Floor, South City-I, advocate. NH-8, Gurgaon. Haryana. Versus 1. Sh. Ashwani Setia .. Respondent. 186, Karishma Apartments in person. 27, I.P. Extension Delhi 2. Him Motors(P) Limited Plot No.338, Patparganj Indl. Area, Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Respondent No.1 has appeared on its own and argued the matter hence the appeal is decided on merit.
2. On having sold a car with manufacturing defect, the appellant has been vide impugned order dated 08.08.2007 passed by the District Forum, directed to refund a sum of Rs.4,48,212/- towards cost of the car and compensation of Rs.30,000/- and Rs.5,000/- as cost of litigation.
3. Feeling aggrieved the appellant has preferred this appeal.
4. Allegation of the respondent No.1 leading to the impugned order in brief were that he purchased a car Tata Indico registration No.DL-4 CU 4216 on 25.7.2004 from respondent No.2. The respondent No.1 paid a sum of Rs.4,48,212/- as consideration of the above noted car. The car was manufactured and marketed by the appellant. The respondent No.1 also opted for extended warranty after the expiry of manufacturers warranty of 18 months from the date of purchase. Hence the car was under comprehensive warranty upto 24.07.2007 (three years from the date of purchase).
5. The car broke down on 17.06.2005 near Bahadurgarh. It was towed to workshop of respondent No.2 at Mangolpuri. The car remained with respondent No.1 till 24.06.2005. It was delivered on 24.06.2005 to respondent No.1 after repair. Respondent No.2 carried out repair in respect of engine and turbo. The vehicle again broke down on 04.11.2005 while the respondent No.1 was returning from Sikar in Rajasthan. The car was towed down to Delhi. The car was delivered at the residence of respondent No.1 on 13.11.2005. The appellant and respondent No.2 did not reveal anything about the nature of problem and the alleged repair. Further that in end of June 2006 the said car again had problem in lighting circuit and on enquiring the respondent No.1 was informed by the agent/dealer of the appellant that the fuel pump and alternator needed to be replaced on payment basis. The respondent No.1, suffered grave hardship due to frequent breakdown of the said car. The respondent No.1 was not in a position to leave the car in the garage for a long time on account of his parents being old and his children small. However, the appellant and respondent No.2 did not pay any heed to the respondent No.1s request to replace the said car though admittedly it had been troubling ever since its purchase. On repeated queries of the respondent No.1 vide email dated 4th July, 5th, July and 6th July 2006 as to how much time was needed to repair the said car, the appellant replied vide email dated 7th July 2006 that it would take 2 to3 days to repair the car.
6. The respondent No.1 vide email dated 10.07.2006 informed the appellants/agent/dealer that he was arranging by purchasing an alternate vehicle and would leave the said car in the garage for repairs. However the said car again broke down on 10th 11th July 2006 and the same had to be towed to M/s. Dhingra Motors, another authorized agent of the respondent No.2 in Gurgaon. The respondent No.1 was informed that the repairs would take 34 days. Even after repair at Dhingra Motors the car did not give smooth drive. The respondent No.1 had to incur a lot of money for repair of the car. The respondent No.1 pleaded that the appellant and respondent No.1 sold the vehicle to respondent No.1 having manufacturing defect. The respondent No.1 prayed for direction to appellant and respondent No.2 to either to replace the vehicle or refund Rs.4,48,212/- towards cost and compensation.
7. As against this the version of the appellant is that the vehicle has run more than 50000 Km in less than two years and District Forum did not take this fact into consideration that the respondent No.1 did not take day to day care of the vehicle which had a breakdown only three times and without there being any expert opinion, District Forum declared the vehicle suffering from manufacturing defect and ordered for refund of the cost of the vehicle.
8. We have taken a view that it is too much to ask the complainant to obtain expert opinion first before filing the complaint. He has already suffered at the hands of trader and to shell out more money to get the expert opinion would be rubbing salt on the wounds. It is the duty of the District Forum to obtain expert opinion on its own, if there is some doubt as to the extent of manufacturing or other defect. Even otherwise the onus to prove that the vehicle does not suffer from manufacturing defect lies heavily on the manufacturer and not on the consumer as in the perception of the consumer vehicle suffers from manufacturing defect or some or the other defect if it break down on the way time and again or off and on.
9. We have in case after case taken a view that it is misconceived notion that the vehicle cannot be declared as defective vehicle unless it suffers from manufacturing defect. If a vehicle is found to be suffering from manufacturing defect the replacement may be ordered but if the brand new vehicle is taken time and again for repair to the garage it reflects either the poor quality or a major defect. Quality of vehicle or for that purpose any goods has to be tested on the anvil of definition of word defect as defined by Section 2(1)(f) of Consumer Protection Act 1986, which means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or} as is claimed by the trader in any manner whatsoever in relation to any good.
10. Whenever a person purchases a brand new vehicle his minimum expectation is that for few months or year he will have no problem much less the major problem. If he starts taking the new vehicle to the garage every second or third day for removing some or the other defect, he does so at the cost of his time, money, patience, mental agony and harassment and also emotional suffering.
11. A person goes for a brand new vehicle by paying heavy amount only to avoid any inconvenience or hardship a second or third hand vehicle or goods presents, and if a brand new vehicle or goods also starts giving trouble and the defect starts erupting from the inception and then time and again person is forced to take it to the workshop after every fortnight or month and still the defect continues, the vehicle or the goods has to be declared as defective goods and therefore a trader or the manufacturer can be asked to do one of the following things as prescribed by Section 14 of the Consumer Protection Act 1986:-
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer, due to the negligence of the opposite party;
12. In the instant case the vehicle broke down three times and engine and turbo parts were to be repaired/replaced. There cannot be any worst kind of manufacturing defect, if engine which is heart and sole of the vehicle has to be replaced or repaired. With replacement of engine, the value of brand new vehicle goes down considerably. Further merely because vehicle has run for 50000 Km is not a circumstance for not declaring the vehicle defective. If a consumer uses the vehicle grudgingly or reluctantly and at the risk of break down of the vehicle, it doe not mean that the vehicle is not defective. Defects are demonstrated from the job cards and repeated visits for getting the defects removed and if still the defects continue, may be even after warranty period vehicle has to be declared defective vehicle.
13. We have also taken a view that whenever such problem arises the endeavour of the District Forum should be to end the dispute between the parties once for all and not to relegate the parties to square one and enter into second bout of litigation and therefore the permanent solution is to ask for refund of the cost of the goods and not to replace the vehicle by a new vehicle or goods free from any defect as the possibility of new goods being also defective or not upto the satisfaction of the consumer cannot be ruled out.
14. For the foregoing reasons we do not find any merit in the appeal and dismiss the same. The payment shall be made within one month from the date of receipt of this order.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 26th day of November 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri