State Consumer Disputes Redressal Commission
M/S Manpreet Travels vs Tata Motors Ltd. on 5 June, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1447 of 2012
Date of Institution: 25.10.2012.
Date of Decision: 05.06.2015.
M/s Manpreet Travels through its Sole Prop. Manpreet Sra aged 38
years W/o Harjinder Singh, R/o H.no.14, New Officer Colony,
Khokhar Complex, Patiala.
.....Appellant/complainant
Versus
1. The Tata Motors Ltd., SCO no.364, 365, 366, Second Floor,
Sector 34-A, Chandigarh, through its Branch Manager.
2. The Hemant Goyal Motors Pvt. Ltd., Rajpura Road, Patiala
through its Branch Manager.
3. The Oriental Insurance Company, SCO no.126, Chhoti
Baradari, Patiala, through its Branch Manager.
....Respondents/opposite parties
First appeal against order dated
07.09.2012 passed by the District
Consumer Disputes Redressal
Forum, Patiala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. R.M. Sharma, Advocate.
For respondent no.1 : Ex-parte.
For respondent no.2 : None.
For respondent no.3 : Sh. Navin Kapoor, Advocate. .............................................. First Appeal No.1447 of 2012 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), assailing order dated 07.09.2012 of District Consumer Disputes Redressal Forum Patiala (in short, "the District Forum"), vide which, the District Forum dismissed the complaint of the complainant.
2. The complainant M/s Manpreet Travels, through its sole Proprietor has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that as per quotation dated 26.05.2011 for hiring of Tata Indigo CS LS (diesel) taxi by the State Bank of Patiala, Liaison Department, Head Office, The Mall, Patiala, the contract for hiring of taxis, the complainant purchased new Tata Indigo Car, bearing registration no.PB-01-9846, chassis no.MAT607146BWF152573 from authorized dealer M/s Hemant Goyal Motors Pvt. Ltd., Patiala (OP no.2) in the month of June 2011. The said vehicle was registered under the State Transport Authority Chandigarh, Punjab and got fitness certificate. The said vehicle was insured with Oriental Insurance Company branch at Chhoti Baradari, Patiala (OP no.3). The said vehicle was authorized from the State Transport Authority for tourist permit, vide serial no.142135. The accessories was purchased from OP no.2 on 29.06.2011, vide bill no.77, through cash payment. The said vehicle was entrusted to the Bank Manager First Appeal No.1447 of 2012 3 of State Bank of Patiala and was parked by the Driver near the house of Bank Manager at City Centre, Residential Complex Patiala. On 25.07.2011, car was parked by the driver at 10:00 PM, then suddenly it caught fire due to some technical, mechanical and manufacturing defect in the vehicle and got burnt in the parking. The security guard of the said parking area noticed the fact and gave the intimation to the Bank Manager about it. The complainant informed the dealer regarding burning of the vehicle, whereupon the employee of OP no.2, the authorized dealer lifted the car to their work shop. OP no.2 gave the estimate regarding labour charges for accidental repair to the complainant approximately Rs.2 lakhs, but they stated that half of the charges would be paid by the complainant to OP no.2. In view of this fact, the bank had written letter dated 24.08.2011 to the complainant regarding replacement of the said repaired vehicle with new one. In this letter, the bank mentioned that the captioned car was provided to the bank authorities, the said vehicle caught fire and front internal portion was completely damaged. At the time of fire, the car was parked at the residence of the Executive. OP no.2 issued letter dated 12.08.2011 demanding the parking and estimated charges @ parking charges i.e. Rs.150/- per day and estimation charges i.e. 5% of total amount of estimation. The complainant issued legal notice to OPs, but to no effect. The complainant has filed the complaint, directing the OPs to replace the above said vehicle with new one, besides payment of compensation First Appeal No.1447 of 2012 4 of Rs.50,000/- for mental harassment and Rs.15,000/- as litigation charges.
3. Upon notice, OP no.1 appeared and filed written reply by raising preliminary objection that Tata Motors Limited is a company registered under the Companies Act, 1956. Tata Motors is the country's market leader in commercial vehicles among the top three in passenger vehicles. OP no.1 is the manufacturer of the vehicle and it had given warranty for a specified period on the stipulated terms and conditions to the consumer and the consumer accepts such warranty. There is pure and simple non statutory contract and both the parties are bound by the terms and conditions thereof. When, complainant signed the contract documents, he is bound by its terms and conditions, under clause 9 of the warranty terms and conditions, which are set out therein. The jurisdiction of the Consumer Forum was questioned on the ground that the complainant is not the consumer. The complaint of the complainant was alleged to be false and frivolous. It was further averred that there is no expert report regarding any manufacturing defect in the vehicle on the record by the complainant. The complainant has not produced any expert witness to prove any manufacturing defect in the vehicle and hence no manufacturing defect can be presumed in the vehicle by any stretch of reasoning. It was averred that complainant purchased Tata Indigo Car for taxi purpose. It was further averred that complainant has wrongly alleged that vehicle got First Appeal No.1447 of 2012 5 burnt due to technical, mechanical and manufacturing defect. It was further averred that as per clause 5 of the Warranty Terms & Conditions, the warranty shall not apply in case of any accident, negligence, etc. The parking charges has rightly been asked by OP no.2 from the complainant, since it occupied the space of the workshop of OP no.2. OP no.1 prayed for the dismissal of the complaint of the complainant on the above pleadings.
4. OP no.2, the authorized dealer filed its separate written reply, raising preliminary objection that complaint is not maintainable, in as much as, the vehicle was purchased in the name of firm Manpreet Travels and used for commercial purposes and hence complainant is not the consumer. It was further averred that there is no manufacturing defect in the vehicle in question, being a fire case, as admitted by the complainant in para no.6 of the complaint. Only the Insurance Company (OP no.3) is liable to indemnify the claim, if any. The complainant has not turned up and lastly a registered letter dated 08.02.2011 was written by OP no.2 to the complainant to complete and formalities, so that the accidental job may be carried out, but till date neither any reply was ever received from the complainant. Any deficiency in service and unfair trade practice were vehemently denied by OP no.2. Op no.2 admitted this fact that complainant purchased the vehicle from it, being authorized dealer of OP no.1. It was further averred that OP no.2 is not liable therefor First Appeal No.1447 of 2012 6 to indemnify the complainant. OP no.2 prayed for the dismissal of the complaint.
5. OP no.3, the Oriental Insurance Company filed its separate written reply, raising preliminary objections that complaint is not maintainable, in as much as, no claim has been lodged with OP no.3 by the complainant. There is no deficiency in service on the part of OP no.3. OP no.3 denied this fact that complainant purchased the vehicle from OP no.2. It was further stated that OP no.3 has issued package policy Zone B for Tata Indigo Car CS of M/s Manpreet Travels 14, New Officer Colony Patiala for the period 27.06.2011 to 26.06.2012 for a sum of Rs.4,75,109/-. OP no.3 further averred that it has no liability whatsoever in this case, because no claim has been lodged or intimated to OP no.3 by the complainant nor any deficiency in service is there on the part of OP no.3. OP no.3 prayed for the dismissal of the complainant.
6. The complainant tendered in evidence his affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-19 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit of M.K. Bipin, Manager (Law) Ex.R-1 and closed the evidence. OP no.2 tendered in evidence the affidavit of Satish Sharda, G.M. Works, Ex.R-4 alongwith documents Ex.R-5 and R-6 and closed the evidence. In rebuttal of evidence of the complainant, OP no.3 tendered in evidence the affidavit of I.K. Munjal, Sr. Divisional First Appeal No.1447 of 2012 7 Manager Ex.R-2 and copy of policy Ex.R-3 and closed the evidence thereafter. On conclusion of evidence and arguments, the District Forum Patiala dismissed the complaint of the complainant by virtue of order dated 07.09.2012. Dissatisfied with the above order, the complainant, now appellant has preferred this appeal against the same.
7. We have heard the learned counsel for the appellant and respondent no.3, as none appeared for respondent no.2 at the time of final arguments in this appeal for the reasons best known to it. Respondent no.1 is ex-parte in this appeal. Evidence is required to be examined by us on the record to settle the controversy between the parties in this case. Pleadings of the parties have been carefully perused by us on the record. Affidavit of complainant is Ex.C-1 on the record in support of his pleadings. Ex.C-2 is the letter sent to the complainant by State Bank of Patiala for supplying the photocopies of RCs, Insurance, Driving Licence of drivers, Taxi permits, etc. for it perusal. Ex.C-3 is the terms and conditions for hiring the taxis entered into between the complainant and State Bank of Patiala. Ex.C-4 is the registration certificate of the said vehicle in the name of the complainant. Ex.C-5 is the certificate of fitness. Ex.C-6 is the insurance policy of the vehicle in question for the period 27.06.2011 to 26.6.2012. Ex.C-7 is the National permit of the said car. Ex.C-8 is the bill dated 29.06.2011 in cash by OP no.2 in the name of the complainant of Rs.5400/-. Ex.C-9 to C-11, are the photographs of First Appeal No.1447 of 2012 8 the said burnt car. Ex.C-12 is estimate of this burnt vehicle issued by OP no.2, being authorized dealer. The estimate of repair is to the tune of Rs.2,01,167/-. Ex.C-13 is the parking & estimation charges issued by OP no.2 to the complainant. It has proved that OP no.2 started raising demand of charging the parking fee, when the estimate was finalized. Ex.C-14 is letter from State Bank of Patiala to the complainant regarding replacement of Car no.PB-01-9846. Ex.C- 15 is the legal notice served upon the OPs by the complainant dated 30.08.2011 on the record. Ex.C-16 to C-18, are the receipts thereof. Ex.C-19 is the letter from OP no.2 to the complainant to the effect that the possibility of fire due to manufacturing defect is completely overruled, after inspection of the car at the premises, they were of the view that car caught fire due to some external reason, which is quite evident from the pattern of burning inside the car and at the same time, the right window glass opened also justified the cause being of external reason.
8. To counter the above evidence, OP no.1 placed reliance upon affidavit of M.K. Bipin, Manager (Law) of OP no.1, the manufacturer of this case. The allegations in the complaint have been denied in this affidavit on oath. It is stated in this affidavit by the deponent that the fire was not due to some manufacturing defect, which erupted in the vehicle. As per clause 7 of the warranty terms and conditions, the complainant is entitled to only those rights, which were set out therein. This warranty shall not be applied to any repair First Appeal No.1447 of 2012 9 or replacement, as a result of accident or collision. It is further stated in this affidavit that the vehicle was burnt due to negligence of the driver of the complainant and this warranty stood as 'null and void'. OP no.3 placed reliance upon the affidavit of I.K. Munjal, Sr. Divisional Manager of Insurance Company is Ex.R-2 on the record. It is stated in this affidavit that OP no.3 issued package policy zone B for Tata Indigo Car in question of the complainant for the period 27.06.2011 to 26.06.2012 for a sum of Rs.4,75,109/-. OP no.3 denied its liability through this affidavit to the effect that no such claim has been lodged with it about the car. It is further stated in this affidavit that car was being used for commercial purpose and complainant is not the consumer. The policy document is Ex.R-3 on the record. OP no.2 placed reliance upon the affidavit of Satish Sharda, GM (works) is Ex.R-4 on the record. Ex.R-5 is the letter dated 08.09.2011 addressed to the complainant by OP no.2 with regard to completion of formality for vehicle no.PB-01-9846 and Ex.R-6 is the postal receipt thereof.
9. After appraisal of above referred evidence on the record and hearing the submissions of the parties, the District Forum dismissed the complaint of the complainant primarily on the ground that complainant has failed to establish on record any manufacturing defect in the vehicle, which led to the burning of the car. The car in question caught fire on 25.07.2011, when it was parked in the City Centre, Residential Complex Patiala, near the house of the Bank First Appeal No.1447 of 2012 10 Manager, which hired it. The allegation of the complainant is that this fire was induced in the car due to some manufacturing defect in it. We find that there is no evidence on the record, nor any document on the record to prove as to what was the manufacturing defect or mechanical defect or technical defect in the car in question. The complainant has not reported to OP no.1 and OP no.2 earlier on any occasion regarding the troubles given by this car. No specific cause in the shape of technical and mechanical or manufacturing defect has been established on the record by examining any expert witness by the complainant in this case. The complainant never applied before District Forum for assistance of some mechanical engineer to prove this fact that car caught fire due to some technical or manufacturing defect in it. The car was standing parked in the parking, when it caught fire and it was not even in motion at that time and was in a state of quietus. As per the version of the OPs, the car was examined by the competent engineer of Tata Motors, who inspected the car at the premises of OP no.2 and found that car caught fire due to some external reasons, as the circumstances spoke itself about it. The open window glass was one of the reasons to reach the conclusion that the car was burnt due to external reasons and not on account of technical, mechanical or manufacturing defect therein. The District Forum has rightly observed that no expert engineer has been examined by the complainant nor applied to District Forum for examination of car by First Appeal No.1447 of 2012 11 any mechanical engineer to establish this fact that the car was burnt due to its manufacturing defect only. The onus was on the complainant to establish this fact, but he complainant had led no evidence other than his bald statement that car caught fire due to manufacturing defect without specifying any manufacturing or technical defect in it. The car was not in working motion, when it caught fire and it was standing in the parking and hence possibility of catching fire due to technical or manufacturing defect is not believable. The State Bank of Patiala, which hired the new car, instead of old car, was never reported earlier, that the car was giving any such trouble to the complainant. There is no dispute of this factual position that the said vehicle caught fire. The complainant approached OP no.2 on 10.08.2011 for preparing the estimate of the damaged car. OP no.2 prepared the estimate dated 10.08.2011 Ex.C-12 of Rs.2,01,167/- towards repair of the car. The Bank Authorities had not accepted the repaired car, which was not able to serve their purposes. Only obligation under the warranty shall be limited to repairing or replacing free of charge, such parts of the vehicle, which were defective. The parts so repaired or replaced shall also be warranted for quality and workmanship, but such warranty shall be co-terminus with this original warranty. There is no evidence on the record by the complainant, which part of the car was facing the manufacturing defect in it. The car could not have faced the erupted fire all of a sudden, when it was in stationary condition in First Appeal No.1447 of 2012 12 the parking area. The complainant relied upon law laid down in "Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra" reported in 2006(4)SCC-644, wherein it has been held that if the manufacturing defect is established, then replacement of the entire item or the replacement of the defective part is only called for. As per warranty conditions, only replacement of the defective parts is required to be changed. We, thus, find that District Forum has rightly held in the order under challenge in this appeal that onus was on the complainant to prove the manufacturing defect in the car, which was responsible for damage of the car through fire. Neither any manufacturing defect has been specified nor any expert witness has been examined to substantiate this fact on the record by the complainant. The complainant has not even moved an application to District Forum for appointing any such mechanical engineer to examine the car and to give the report on this point. On the basis of mere statement of the complainant, which is not by any expert witness, we are unable to hold that the car of the vehicle got burnt due to some manufacturing defect, more so when it was in a stationary condition in the parking and the engine of the car was not in working condition, when it caught fire. We find that District Forum has appreciated the controversy in this case appropriately. We find no ground to differ with the view taken by the District Forum in this case.
First Appeal No.1447 of 2012 13
8. As a result of our above discussions, finding no merit in the appeal of the appellant, the same is hereby dismissed.
9. Arguments in this appeal were heard on 27.05.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S.GURAM) MEMBER June 5, 2015.
(MM)