National Consumer Disputes Redressal
M/S Tata Motors Ltd., vs Sharad & Anr. on 19 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2340 OF 2009 (Against the Order dated 21/05/2009 in Appeal No. 2631/2008 of the State Commission Karnataka) 1. M/S TATA MOTORS LTD., Marketin And Customer Support Passenger Car Business Unit 26, Floor. Center No.1, World Trade Center Cuffe Parade Mumbai -400005 ...........Petitioner(s) Versus 1. SHARAD & ANR. S/o. Kaxman Konaraddy No.99 silver Town . Gokul Road. Hubli -580032 2. M/S. MANICKBAG. AUTOMOBILES PVT. LTD Vidyanagar. Dharwad Road. Hubli -580031 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Petitioner : Mr. Aakarshan Sahay, Mr. Saurabh Kumar and Ms. Seema, Advocates For the Respondent : For RespondentNo.1 : Mr. Basavaprabhu Hosakeri, Advocate For Respondent No.2 : Ex-parte Dated : 19 May 2016 ORDER
1. This revision petition has been filed by M/s. Tata Motors Ltd., petitioner against the order dated 21.5.2009 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short 'the State Commission).
2. Brief facts of the case are that on 25.09.2006 complainant purchased Tata Indica car for a sum of Rs.3,87,835/- bearing Registration No.KA-25/N-6266 with Chassis No.605121JTZPD4969 and Engine No.475DT15JTZPD 3938. On 04.10.2006, the complainant approached the dealer with complaint of tyre as there was air bubble in the tyre and the same was replaced under warranty. On 13.01.2007, the vehicle was brought to OP-2 workshop with a complaint that there was noise in the door and so the same was replaced under warranty. On 14.02.2007, the vehicle availed 2nd Free Service when it had run 10000 Kms. On 6.07.2007, the vehicle availed 3rd Free Service as per the Operator's manual. The vehicle was brought to the service station for removal of different defects/problems on 18.07.2007, 28.07.2007, 29.08.2007, 17.09.2007, 22.09.2007, 31.01.2008, 19.03.2008, 15.04.2008 and 22.04.2008 when the vehicle had covered from 20,588 Kms. To 36,278 Kms. The respondent No. 1 filed a consumer complaint on 26.04.2008 before the District Consumer Disputes Redressal Forum, Dharwar, (in short 'the District Forum).
3. The District Forum vide its order dated 7.10.2008 allowed the complaint as under:-
"Complaint is allowed in part with a direction to the respondents to replace a new vehicle of same make and model or to pay its cost Rs.3,87,835/- and Rs.500/- towards cost of the litigation within two months from the date of receipt of copy of this order, failing which that amount shall carry interest @ 8% p.a. from the date of order till its realization. If new vehicle is replaced the complainant shall surrender his vehicle KA25 N6266 to the respondents."
4. Aggrieved with the above order of the District Forum, the petitioner filed an appeal before the State Commission, which was dismissed vide its order dated 21.5.2009.
5. Hence the revision petition.
6. Heard the learned counsel for the petitioner as well as for the respondent No.1. The respondent No.2 was proceeded ex-parte vide order dated 23.01.2015 of this Commission.
7. Learned counsel for the petitioner argued that there were some initial teething problems in the vehicle, which were rectified and the trouble-making parts were replaced under warranty. These were minor defects like rattling of the doors, air bubble in the tyre, gear box problems etc. The District Forum has erred to treat these defects as manufacturing defects and has ordered replacement of vehicle. The fora below have relied on the so called expert evidence of a mechanic, who has claimed himself to be a mechanical engineer, though, he is only a diploma holder. An affidavit has been filed by the mechanic and without inspecting the vehicle he has given his opinion based on the pleadings as would be clear from his affidavit itself. He has opined that the defects in the vehicle are the manufacturing defects. Learned counsel argued that his report cannot be relied upon as he has not inspected the vehicle and has given his report only on the basis of pleadings.
8. Learned counsel for the petitioner further stated that the vehicle had met with an accident on 18.5.2007 and as per Clause 5 of the warranty, the warranty would become in-operative. Further the learned counsel argued that liability or obligation under the warranty is limited to repairing and replacement of defective parts only. Once the vehicle had met with an accident, even the parts cannot be replaced under warranty, what to say of whole car. Learned counsel also emphasised that the fact of the accident was suppressed by the complainant in the complaint. The petitioner has filed the job card dated 16.5.2007 before this Commission, which was taken on record. Learned counsel pointed out that this job card was opened when the vehicle was brought for repairs after the accident.
9. It was pointed out by the learned counsel for the petitioner that the vehicle did not suffer from any manufacturing defects as the vehicle had run about 35000 km. in one year and till now it has run more than 90000 km. Had there been any manufacturing defect, the vehicle could not have run so much. Moreover, whenever any defect was pointed out by the complainant, the same was removed by changing the relevant part under the warranty. Thus, the petitioner always fulfilled his obligation under the warranty and beyond that there is no obligation put up on him by any other law. Hence, there is no deficiency in service on the part of the petitioner.
10. Learned counsel for the petitioner stated that fora below failed to appreciate the provisions of Section-13(1)(b) to (g) as well as to follow the decisions of this Commission in the case of Swaraj Mazda Ltd. P.K. Chakkappore (2005) CPJ 72 (NC) [paras 5 and7] and Ashok Leyland Ltd. Vs. PrabhulalMaru&Ors. (2004) CPJ 38 (NC) [para c], where it was held that the procedure of referring the vehicle to an independent laboratory or expert as per the mandatory provisions of Section 13 (1) (b) to (g) of the Consumer Protection Act 1986 has to be adhered to and followed in each and every case and the fora below have failed to appreciate that the mandate of Section 13(1)(b) to (g) has to be followed in a case where "defect" is alleged by the Complainant and the same is disputed by the opposite side namely, the petitioner.
11. Learned counsel for the petitioner raised the initial objection that the vehicle was purchased in the name of the Company and therefore, it was clearly for a commercial use and therefore, the complainant is not a consumer.
12. Learned counsel for the petitioner cited the following judgement in support of his contention that onus to prove manufacturing defects lies with the complainant:-
i. Classic Automobiles Vs. Lila Nand Mishra &Anr., I (2010) CPJ 235 (NC), wherein it has been observed:
"(i) Consumer Protection Act, 1986- Sections 2(1)(f), 2(1)(g), 13(1)(c)- Motor Vehicles- Manufacturing defects- Complaint allowed by Forum- Joint and several liability imposed on manufacturer and dealer- Manufacturer absolved in appeal- Entire liability fixed on dealer- Hence revision- Onus to prove manufacturing defect lies on complainant - No expert evidence produced to prove manufacturing defect in vehicle- Alleged defects cannot be termed as manufacturing defect - Vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects- Manufacturing defects in vehicle not proved - Order of lower Fora set aside."
13. Learned counsel for the petitioner also mentioned the decision of National Commission dated 08.01.2007 in the case of Lovely Autos Vs. Harmesh Lal &Anr., I (2007) CPJ 312 (NC), wherein the revision petition field by the dealer was allowed and order of replacement of the vehicle was set aside.
14. Learned counsel for the respondent No.1 argued that the vehicle started giving troubles just after a few days of its purchase. All kinds of defects like defective tyre, rattling sound in doors, problem in gear box etc. were faced and the vehicle was taken to the workshop 11 times in one year. When the whole vehicle developed defects right from the date of purchase, these defects must have definitely come from manufacturing stage and changing individual parts would not solve the problem and that is why it gave continues problems in running.
15. Learned counsel for the respondent stated that the job card dated 16.5.2007 was not produced by the petitioner before the State Commission or the District Forum. Learned counsel pointed out that in the list of dates submitted along with revision petition by the petitioner, there is no date as 16.5.2007 mentioned, i.e. when the vehicle was brought for repairs, whereas the job card dated is 16.5.2007. As per the version given by the learned counsel for the petitioner, the accident had occurred on 18.5.2007, but the job card was opened on 16.5.2007. This shows that the repair works were taken up two days before the accident, which is fallacy in itself. Leaned counsel also stated that the petitioner had repaired the vehicle free of cost under warranty 8 times even after 18.5.2007 and therefore, the petitioner had honoured the warranty even after 18.5.2007. Learned counsel also emphasised that the job card submitted does not bear the signature of the customer or the job card preparer. It does not show any letter head or seal of the company/ garage/workshop. Thus, the story of the accident is a concocted one and cannot be believed.
16. Learned counsel for the respondent stated that the vehicle was purchased for the use of the complainant and as per the decision of National Commission in the case of Deepak K. Raman Vs. Maruty Udyog Ltd. &Ors., III (2010) CPJ 381 (NC), the vehicle purchased in the name of the Company, but being used by Director would be covered under the Consumer Protection Act, 1986 and it will not be treated as a commercial use.
17. Learned counsel for the respondent further cited the case of Hyundai Motors India Ltd. Vs. Affiliated East West Press Ltd., I (2008) CPJ 19, (NC),wherein it has been observed:-
"Consumer Protection Act, 1986- Sections 2(1)(f),2(1)(g), 14(1)(c), 14(1)(d)- Motor Vehicles- Manufacturing defects - Brand new luxury car required to be repaired repeatedly- Defects could not be rectified- Deficiency in service proved- Replacement of defective vehicle directed by forum- Order modified in appeal- OP directed to refund entire cost of vehicle - Compensation for mental agony and harassment awarded- Hence revision- Contention, vehicle used for one year, appropriate deduction to be made in amount payable to complainant- Contention not acceptable- OP could not rectify defects liable to replace vehicle- No question of any deduction arise- order of State Commission upheld."
18. Learned counsel also in support of his contention that for these defects the vehicle is required to be replaced with a new vehicle, cited the judgment in the case of Bajaj Auto Ltd. &Ors. Vs. Anurag Kapoor, I (2003) CPJ 203 (NC).
19. Learned counsel for the respondent has cited the judgment of Hon'ble Supreme Court in C.N. Anantharam Vs. Fiat India Ltd. & Ors. ETC., ETC., IV (2010) CPJ 56 (SC), wherein it has been observed:-
"Consumer Protection Act, 1986- Sections 2(1)(g), 2(1)(f), 23- Motor Vehicles - Manufacturing defect- Forum and State Commission directed respondents to replace vehicle or refund amounts- National Commission reversed findings of forums below- Hence appeal -Contention, vehicle had been duly certified to be completely roadworthy and petitioner's complaints duly attended- Accepted- Apart from complaint relating to noise from engine and gear box there was no other major defect- Engine duly replaced by new one- National Commissions' order not unreasonable- Directions issued to independent technical expert."
20. We have carefully considered the arguments advanced by both the parties and have gone through the records. First of all, we are not inclined to accept the plea of the petitioner that the vehicle was purchased for commercial use and therefore the complainant was not a consumer. The vehicle was being used by the complainant himself as proprietor of a sole proprietorship concern.
21. It is also to be considered that whenever the vehicle was brought to the OP No.2 with any problem, the defect was removed by repairs or replacing relevant parts, which the petitioner was mandated under warranty. As the job card dated 16.5.2007 submitted by the petitioner was not produced before the fora below and there is also discrepancy that accident has been alleged on 18.5.2007 whereas the job card starts on 16.5.2007 and the petitioner himself had repaired the vehicle under warranty 8 times after 18.5.2007, We are unable to accept the contention of the petitioner about the accident. It is true that the warranty included only repairs and replacement of parts and the change of whole vehicle is not mandated.
22. It is important to note that the vehicle had run about 35000 km in the first year and as per the admission of the learned counsel for the respondent during arguments, had run more than 90000 km. Obviously, no case is made out for replacement of the vehicle at this stage. Had there been any serious manufacturing defect, it would not have been possible to run the vehicle for so many kilometers. The circumstances and later developments in the case itself negate the justification of the order of the District Forum to a great extent. We also observe that the cases cited by the learned counsel for the respondent have different facts. The case of Bajaj Auto Ltd. &Ors. Vs. Anurag Kapoor (supra) relates to a motorcycle and the case of Hyundai Motors India Ltd. Vs. Affiliated East West Press Ltd. (supra) relates to a car which had not run so much mileage as the vehicle in the present case. Accordingly, we do not find any justification for replacement of vehicle or reimbursement of the whole cost of the vehicle which has already run for more than 90000kms. On the other hand, we are of the considered view that the complainant has suffered lot of inconvenience and misery due to improper functioning of the vehicle right from the initial days of purchase. As no purchaser of a new vehicle would ever think that he would be going to garage to get the vehicle repaired so often even if the repairs may be minor. If this has happened, the purchaser is definitely liable to receive some compensation for inconvenience and mental agony faced by him due to supply of a vehicle having some defects. Accordingly, we deem it proper that the complainant must get compensation of Rs.80,000/- from the petitioner. In holding this view, we are relying on a recent judgment of this Commission given on 01.02.2016 in RP No.2354 of 2011, Tata Motors Ltd. & Ors. Vs. Ran Singh, (NC), wherein the order of the lower fora for replacing the vehicle or paying Rs.10,43,749.37 has been set aside and the order relating to award of compensation of Rs.2,00,000/- has been upheld.
23. Based on the above discussion, the revision petition is partly allowed and the order dated 21.05.2009 of the State Commission and order dated 07.10.2008 of the District Forum are set aside. Petitioner is directed to pay Rs.80,000/- ( Eighty thousand Only) to the complainant as compensation for inconvenience, misery and mental agony faced by the complainant within a period of 30 days, failing which, this amount of Rs.80,000/- ( Eighty thousand Only) will carry an interest at the rate of 9% p.a. from the date of this order till realization. No order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... PREM NARAIN MEMBER