State Consumer Disputes Redressal Commission
Subhash Ahuja, vs Tata Engineering & Locomotive Co. Ltd on 22 October, 2008
C-307/2000 IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22-10-2008 Complaint Case No. 307/2000 1. Subhash Ahuja, 1/115-116 Subhash Sadan, WHS, Kirti Nagar, New Delhi 110015. 2. NAWABS, Through Shri Subhash Ahuja, Sole Proprietor, 1/115-116 Subhash Sadan, WHS, Kirti Nagar, New Delhi 110015. Complainants Versus 1. Tata Engineering & Locomotive Co. Ltd. Through Shri Rattan Tata, Chairman, 6th Floor, World Trade Centre, Cuffe Parade, Mumbai 400005. .. Opposite Party No.1 2. Concorde, A Tata & Jardine Company, Through Its Managing Director, Service Centre, 19-Shivaji Marg, New Delhi 110015. .. Opposite Party No.2 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 (Oral)
1. Complainant No.1 is the sole Proprietor of Complainant No.2. Complainant No.1 purchased a Tata Indica Car for his personal use.
Complainant No.1 purchased the Tata Indica car in the name of the Complainant No.2 from Opposite Party (in short O.P) No.2 who is the authorized dealer of the OP No.1. The delivery of the car bearing registration No.DL-4CJ-1679 was made to the Complainant No.1 on 26.05.1999 by OP No.2 for Rs.3,82,436.34 as Ex-showroom price. On road the car cost Rs.4.00 Lacs approx. to the Complainants. However, as per the complainants, the car in question was highly defective and had started giving problems from day one. The Car was in its totality a defective piece made up of all inferior quality parts and defective material. From the very first day, not only the Engine but each and every part of the Car created problems and caused unnecessary and unwarranted trouble to Complainant No.1. As such the complainant has sought compensation of Rs. 19,11,000/- with interest @18% for mental agony, harassment and business loss.
2. The allegations in brief are that on 27.05.1999 the Car was taken to the workshop of the OP No.2 as there was leakage in steering oil and gear oil. The brakes were also making a lot of noise and the vehicle had other complaints as well.
Since car was within the warranty period, during this warranty period the car had to be taken to the workshop as many as 36 times for various problems. So much so, even on the date of filing the present complaint the car was standing in the workshop of the OP No.2 for repairs.
3. That the car developed the recurring defects which were not only confined to the engine of the car but were in each and every part of the car. The various problems in the car were such as steering oil leakage, gear oil leakage, noisy and ineffective brakes, both wipers not working, loose clutch and play in clutch, right front window glass not fixed properly, fault in wiper jets, all belts noisy and loose, roof moulding and lining not fixed properly, left front window not aligned properly, left front door lock not working properly, rear wind shield washer not working, diesel leakage from return pipe, all window regulators not working, power windows of all doors not proper, engine noisy, over heating, low R.P.M., coolant leakage, A/C not working properly, poor cooling, low R.P.M., pick up with A/C very low, otherwise also low pick up of the vehicle, hand brake not working properly, low average, all wheel rims not proper and three of them have bend, short circuit, all wiring burnt with the danger of car catching fire, front rims had to be changed, rear right tyre had to be changed, head light beam not proper, horn button hard, rear shockers not proper, suspension of the car not proper, B-mounting, starting problem, front axles noisy, front left tyre worn out, clutch hard, gear shifting not proper etc. etc.
4. That the complainant No.1 along with his family was put to great danger of life during the month of September, 1999 when on his trip to the hilly area in the Shivalik Hills near Hoshiarpur, the total wiring of the vehicle got burnt and the vehicle started emitting smoke and the entire family had to spend several hours on the road in a helpless state.
5. That delivering a defective car and inability to cure the defects in the car by the OP No.2 amounts to manufacturing defects in the goods and deficiency in service both on the part of OP No.1 & 2. The complainant made various representations to OP No.1 and OP No.1 in response thereto assured the complainant the best of their services.
6. In its defence, OP averred that the vehicle had gone through extensive checks at the plant and at the time of final inspection before its delivery from Pune plant. All the systems of this particular model had been tested and certified by ARAI as having complied with the Central Motor Vehicles Rules. The vehicle in question was also put to pre-delivery inspection before it was delivered to the complainant. The vehicle which was delivered on 22nd May, 1999 had covered over 64,800 Kms. Even assuming without admitting repairs were carried out, these were carried out and the vehicle was road worthy and constantly and regularly used by the Complainant. The vehicle was not defective it was used by the complainant continuously.
7. That the quality of the vehicle is as per specifications and standards. The after sales service rendered by M/s Concorde, the authorized dealers and agents was up to the mark. OP No.1 and its dealers had attended to all jobs free of charge during the period of warranty on the vehicle. The vehicle was taken to the workshop for regular servicing as a result of heavy usage of the car. All the problems were attended to and the vehicle made roadworthy. The vehicle had run for more than 64,800 kms. in the year. This fact itself is sufficient to show that there were no serious defects in the vehicle, much less any inherent manufacturing defect.
8. That the OP and its dealers had attended to all jobs free of charge even after the period of warranty on the vehicle had expired. The engine was replaced as a gesture of goodwill.
The complainant had failed to establish that it had incurred any loss or damage arising out of or as a consequence of any deficiency in service indulged in by the OP No.1.
9. On behalf of O.P. No.2 it is pleaded that the vehicle in question has been purchased by the complainant No.1 in the name of complainant No.2 for commercial purpose for being used in furtherance of the business of the complainant No.2 and as such is being used for a commercial purpose to earn profits.
10. That the OP No.2 cannot be held liable for any alleged manufacturing defect in the vehicle in question. The alleged defects are not defects but are minor adjustments and replacement of consumable parts, which arise because of the running of the vehicle.
The vehicle and its parts suffer wear and tear on the running of the vehicle and are, therefore, required to be serviced and even replaced from time to time.
11. That the complainant No.1 had regularly got the vehicle serviced from the service center of the OP No.2 not only before filing of the present complaint petition but even after filing of the same. Whenever the vehicle has been brought to the service center of the OP No.2, whatever adjustments and repairs are required in the vehicle the same are duly attended to and satisfactorily removed to the satisfaction of the owner of the vehicle. The defects having been removed, there is no deficiency of service whatsoever on the part of the OP No.2.
12. That the vehicle records and service invoices show that only the consumable parts have been replaced in the vehicle during the servicing and maintenance of the same. The said minor parts have been replaced and changed within the terms and conditions of the warranty. The OP had duly complied with the terms and condition of the warranty.
13. That the complainants have admitted that the vehicle in question, i.e. a Tata Indica DLX India 2000 Car was purchased by the complainant No.1 in the name of complainant No.2 to carry on day to day business routine for earning profits.
14. O.P.2 denied that the vehicle in question was/is a defective piece and has stated that the vehicle in question was also put to pre-delivery inspection before it was delivered to the complainant No.1. The vehicle in question had covered over 70,000 Kms as on 10.01.2001 and over 78,400 Kms as on 9.3.2001, i.e. on the dates subsequent to filing of the present complaint when the complainants have availed of the after-sales-services provided by the OP No.2 to the satisfaction of complainant No.1.
The vehicle was/is road worthy and was/is being constantly and regularly used by the complainant No.1.
15. That the alleged defects are not defects but are minor adjustments and replacement of consumable parts, which arise because of the running of the vehicle. In the present case no manufacturing defects were found and the complaint of the complainants was examined and necessary repairs carried out to the satisfaction of the complainants. As the vehicle has been in running condition and put to use by the complainant No.1, no case of deficiency in service is made out for awarding any compensation or damages to the complainants. The complainants had run the vehicle for more than 78,400 Kms as stated above. This fact itself is sufficient to show that there has been no defect in the vehicle much less any inherent manufacturing defect.
16. That OP No.2 had attended to all jobs as per the terms and conditions of the warranty and even after the period of warranty had expired. Further as regards replacement of engine by the OPs is concerned, it was done as a gesture of goodwill and to upkeep the commitment to serve the consumers in the best possible ways.
17. On the above contentions and pleas the OPs have denied any deficiency in service on the part of the OPs or that the complainant had suffered any loss or damage due to any fault or deficiency in service on the part of the OPs for which any compensation is payable.
18. We have accorded careful consideration to the rival claims and contentions of the parties. As regards the objection that the vehicle was purchased for commercial purpose and therefore the complainant is not a consumer, Ld. Counsel for the OPs has relied upon the following decisions of the Supreme Court:-
i) Cheema Engineering v/s Rajan Singh (1997) 1 SCC 131
ii) Lakshmi Engineering Works v/s P.S.G. Industrial Institute (1995) 3 SCC 583.
19. However, in our view, the aforesaid ratio is not applicable in the given facts of the case particularly after the amendment of the provisions of Sec. 2 (1)(d) of the Consumer Protection Act, 1986, defining consumer and in view of the judgment of the Supreme Court in Regional Provident Fund Commissioner v Shiv Kumar Joshi, III (1999) CPJ 36 (SC) = X (1999) SLT 395 = (2000) 1 SCC 98, referred and relied upon by the National Commission in its latest judgment in Harsolia Motors v National Insurance Co. Ltd. 1(2005) CPJ 27 (NC), wherein the case of Laxmi Engineering Works v PSG Industrial Institute II (1995) CPJ 1 (SC) = (1995) 3 SCC 583, was also discussed.
20. Observations of the National Commission are as under:-
21. In New Delhi Municipal Council v. Sohan Lal Sachdev (Dead) represented by Mrs. Hirinder Sachdev, W/o. Late Sohan Lal Sachdev, II (2000) SLT 13 = (2000) 2 SCC 494, the Apex Court considered the meaning of the words commerce and commercial purpose in the context of a question where use of premises for the purpose of guest house can be termed as domestic use for the purpose of electricity charges by the New Delhi Municipal Council (NDMC). The relevant discussion is as under:-
12. The two terms domestic and commercial are not defined in the Act or the Rules.
Therefore, the expressions are to be given the common parlance meaning and must be understood in their natural and ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Strouds Judicial Dictionary the term commercial is defined as traffic, trade or merchandise in buying and selling of goods. In essence the question is what the character of the purpose of user of the premises by the owner or landlord is and not the character of the place of user. For example, running a boarding house is a business but persons in a boarding house may use water for domestic purposes. As noted earlier the classification made for the purpose of charging electricity duty by NDMC sets out the categories domestic user as contra-distinguished from commercial user or to put it differently non-domestic user. The intent and purpose of the classification, as we see it, is to make a distinction between purely private residential purposes as against commercial purpose. In the case of a guest house, the building is used for providing accommodation to guests who may be travelers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is can the use of the premises be said to be for commercial purpose? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy.
Applying the aforesaid test we have to find out two things:
i) Whether goods are purchased for re- sale or for any commercial purpose?
Or
ii) Whether the services are availed for any commercial purpose?
22. Therefore the two fold classification is commercial purpose and non-commercial purpose.
23. If the goods are purchased for resale for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Such illustration would be that a manufacturer who is producing the product A for such production he may be required to purchase articles, which may be raw material, then purchase of such articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the Consumer Forum under the Act.
25. Further from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods are purchased or services hired in an activity which is not directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or services hired in an activity which is not directly intended to generate profit would not be commercial purpose.
21. Thus the commercial activity of the company is different from commercial purpose. Had the complainant purchased the car for further sale for earning profit only then the purpose would come within the ambit of commercial purpose and not otherwise.
22. Similar objections were taken by Insurance Companies in respect of insurance policies taken by the traders in the case of Harsolia Motors v National Insurance Co. Ltd. 1(2005) CPJ 27 (NC) before the National Commission and a view was taken that unless and until a person trades in services or goods by purchasing from the manufacturer or another trader to earn profit, he cannot be held to have purchased the goods or availed the services for commercial purpose.
23. It is a misconceived notion that unless and until a vehicle or any goods suffer from manufacturing defects, it cannot be declared as defective goods or vehicle and, therefore, no order can be passed in terms of Sec. 14(1) of the Consumer Protection Act, 1986, either by directing the manufacturer to remove the defects or by replacing the goods with new goods of similar description which shall be free from any defects or return the price paid by him or to pay such amount as may be awarded as compensation for the loss or injury suffered due to the negligence of the O.P.
24. Quality and standard of every goods, much less, a vehicle has to be tested strictly on the stern definition of defect as provided in Sec. 2(1)(f) of the Act 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 goods.
25. According to this definition, any kind of shortcoming, fault, imperfection, or inadequacy in the quantity, nature and manner of performance renders the goods defective.
26. Mere allegations of the complainant as to the defects in the vehicle supported with job cards are sufficient to put the onus upon the manufacturer to show that the defects pointed out are not manufacturing or of inherent nature. To expect a consumer who has already been wronged at the hands of the manufacturer or trader to incur expenses on obtaining expert opinion of automobile engineers and others to show that the defects are manufacturing or of inherent nature is neither the object of the law nor the import of provisions of Section 13. Onus is heavily upon the manufacturer to prove that the defects pointed out are such that are not manufacturing defects in nature.
27. In spite of having purchased a brand new vehicle if the consumer has to take it to the garage every now and then for removing one defect or the other, such a vehicle has to be declared suffering from defects. In this case even Service Engineers were deputed to the residence of the appellant and there was no respite from the trouble of gear which could have proved fatal. It shows that it was a defective vehicle, the mental trauma and physical discomfort and harassment a consumer undergoes is immeasurable.
28. Merely because the complainant was lucky enough not to face an accident due to the defects and the defective components in the vehicle does not mean that the vehicle was not defective. Such defects have been brought out to the notice of the O.Ps in job cards, several communications etc. by the complainant and in spite of these defects mentioned in the job cards, these were not removed.
29. As regards the contention that the vehicle was put to extensive usage and the job cards show that the vehicle in question was taken to the workshop regularly on account of normal maintenance due to heavy usage and not due to defects or deficiency in service, the Ld. Counsel for the O.P. has relied upon the judgment of National Commission in R. Bhaskar vs.D.N. Udani IV (2006) CPJ 257 (NC) wherein it was held that where the vehicle had covered 9500 Kms in one year it is difficult to believe that the vehicle was suffering from manufacturing defects. The observations of the National Commission in the said judgment were as under:-
All the job cards produced before the Consumer Fora would show that all the routine maintenance warranty service was provided to the vehicle. Further this Commission has consistently held that whenever replacement or refund is sought of the product, the complainant should prove or establish manufacturing defect.
30. Similarly the counsel has also tried to take advantage of the fact that the vehicle had met with an accident after the second service on 29-07-1999 and as per clause-5 of the terms and conditions of the warranty the complainant was not entitled to any warranty benefit.
31. We do not find any substance in the aforesaid contentions as since delivery of the car on 26-05-1999 till 25-11-2000 the car was very much within the warranty period and during this period it had to be taken to the workshop thirty six times as detailed in the complaint for various problems and suffered almost every kind of problem that was not expected of a brand new vehicle. Not only the engine but each and every part of the car created problem causing unwarranted and unnecessary problems for the complainant. The car suffered from problems like steering oil leakage, gear oil leakage, noisy and ineffective brakes, both wipers not working, loose clutch and play in clutch, right front window glass not fixed properly, fault in wiper jets, all belts noisy and loose, roof moulding and lining not fixed properly, left front window not aligned properly, left front door lock not working properly, rear wind shield washer not working, diesel leakage from return pipe, all window regulators not working, power windows of all doors not proper, engine noisy, over heating, low R.P.M., coolant leakage, A/C not working properly, poor cooling, low R.P.M., pick up with A/C very low, otherwise also low pick up of the vehicle, hand brake not working properly, low average, all wheel rims not proper and three of them have bend, short circuit, all wiring burnt with the danger of car catching fire, front rims had to be changed, rear right tyre had to be changed, head light beam not proper, horn button hard, rear shockers not proper, suspension of the car not proper, B-mounting, starting problem, front axles noisy, front left tyre worn out, clutch hard, gear shifting not proper etc.
32. So much so, when the complainant was with his family and driving the vehicle in a hilly area the wiring of the vehicle got burned and the vehicle started emitting smoke and, therefore, had to spend several hours on the road suffering great mental turmoil and agony.
33. As is apparent from the facts, for more than 69 days the car remained stranded in the workshop for removal of one defect or the other and in the process even the engine of the car was changed.
34. There is not a worst case than the instant case of a brand new vehicle which verged on such a large number of manufacturing defects that were bound to cause mental agony, emotional suffering, harassment, loss of business, expenses incurred for taking the vehicle time and again to the garage etc.
35. In view of the observations made by the Supreme Court in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 SCC 65, the consumer is entitled for compensation for each and every element of suffering, mental agony, harassment, expenses incurred for getting the rightful claim etc. The observations of the Supreme Court are in the following terms:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
36. In view of the fact that the vehicle was purchased in 1999 and more than nine years have passed, no useful purpose will be served by replacing the vehicle by a new vehicle as it must have already run huge mileage. But in our view a lump sum compensation of Rs. 2.5 Lacs (Two and a Half Lakhs) for each and every component of suffering which shall also include the cost of litigation, shall meet the ends of justice.
37. Complaint stands disposed of in aforesaid terms.
38. Copy of order as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK