State Consumer Disputes Redressal Commission
Tata Motors Ltd. vs Smt. Kamlesh Garg & Others on 17 February, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 138 / 2014
Tata Motors Ltd.
Bombay House, 24 Homi Modi Street
Fort Mumbai
......Appellant / Opposite Party No. 2
Versus
1. Smt. Kamlesh Garg W/o Sh. Omkar Nath Garg
R/o 348A, Govindpuri, Haridwar, Uttarakhand
.......Respondent No. 1/ Complainant
2. Dada Motors Pvt. Ltd.
Savitri Complex, 1 G.T. Road, Dolewala
Authorized Dealer Tata Motors, Ludhiana
3. I.S. Motors Pvt. Ltd.
E-17, Old Industrial Area, Haridwar
Temporary Address Dehradun-Saharanpur Road
Roorkee, District Haridwar, Uttarakhand
.......Respondent Nos. 2 & 3 / Opposite Party Nos. 1 & 3
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. Shreegopal Narson, Learned Counsel for Respondent No. 1
Sh. Yogesh Sethi, Learned Counsel for Respondent No. 2
Sh. Ram Singh Negi, Learned Counsel for Respondent No. 3
AND
FIRST APPEAL NO. 272 / 2014
Dada Motors Pvt. Ltd.
Savitri Complex, 1 G.T. Road, Dolewala
Authorized Dealer Tata Motors, Ludhiana
......Appellant / Opposite Party No. 1
Versus
1. Smt. Kamlesh Garg W/o Sh. Omkar Nath Garg
R/o 348A, Govindpuri, Haridwar, Uttarakhand
.......Respondent No. 1/ Complainant
2. Tata Motors Ltd.
Bombay House, 24 Homi Modi Street
Fort Mumbai
2
3. I.S. Motors Pvt. Ltd.
E-17, Old Industrial Area, Haridwar
Temporary Address Dehradun-Saharanpur Road
Roorkee, District Haridwar, Uttarakhand
.......Respondent Nos. 2 & 3 / Opposite Party Nos. 2 & 3
Sh. Yogesh Sethi, Learned Counsel for the Appellant
Sh. Shreegopal Narson, Learned Counsel for Respondent No. 1
Sh. S.K. Gupta, Learned Counsel for Respondent No. 2
Sh. Ram Singh Negi, Learned Counsel for Respondent No. 3
Coram: Ms. Kumkum Rani, Judicial Member II
Mr. Bhagwat Singh Manral, Member
Dated: 17/02/2022
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
The appeal No. 138 of 2014 has been preferred, challenging the impugned judgment dated 09.07.2014 passed by the District Consumer Disputes Redressal Forum, Haridwar in consumer complaint No. 410 of 2013; Smt. Kamlesh Garg vs. Dada Motors Pvt. Ltd. and others, wherein and whereby the District Consumer Forum has awarded Rs. 20,00,000/- (Rupees Twenty Lakhs only) to the complainant - respondent No. 1 within one month from the date of judgment.
2. It is further to add that for the sake of convenience, the Tata Motors Ltd.- appellant in First Appeal No. 138 of 2014 & respondent No. 2 in First Appeal No. 272 of 2014, Smt. Kamlesh Garg - complainant - respondent No. 1 in both the appeals, Dada Motors Pvt. Ltd. - appellant in First Appeal No. 272 of 2014 & respondent No. 2 in First Appeal No. 138 of 2014 and I.S. Motors Pvt. Ltd. - respondent No. 3 are arrayed the parties to the both appeals. The above mentioned appeals have been preferred First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 3 against the same judgment and in both the appeals, the parties are same, hence it is just, convenient and appropriate to decide them together.
3. Briefly stated, the complainant has brought the complaint before the District Consumer Forum, Haridwar stating manufacturing defect in the vehicle Tata Safari VX model 2012 bearing number UK08-AA-0027 alleged to have been purchased from the registered dealer and distributor Dada Motors Pvt. Ltd., Ludhiana - opposite party No. 1 on 23.11.2012. After purchase of the aforesaid vehicle, the engine was not properly working, then the vehicle was brought to the opposite party No. 3 to rectify her complaint; the engine was changed, but the problem of heating of engine and ignition at starting point was not removed and the vehicle was again and again being repaired, but due to the technical defect, the vehicle has not come in proper running condition. Thus, the authorized service center was unable to repair her vehicle properly and to remove the defects / problems accrued in the vehicle and inspite of notice, the vehicle was not properly repaired, hence the complainant was compelled to file the complaint before the District Consumer Forum, Haridwar.
4. The opposite party No. 1 in its reply has averred that the aforesaid vehicle was purchased from the agency, but neither it is the manufacturer nor the purchaser; the vehicle has received from the company was sold to the complainant and there was no deficiency of service in its part. The complainant never sent any complaint to it, therefore, on the wrongful fact, the complaint is liable to be dismissed.
5. In the written statement on behalf of the opposite party No. 2 - Tata Motors Pvt. Ltd., Bombay house, Mumbai has stated that the complaint was not filed on correct facts. The vehicle was repaired by the authorized service center and after convincing and satisfying the customer -
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 4 complainant, the vehicle was handed over to the complainant. In the second service the defects which were told, were repaired and in the third and fourth service, the defects which were told before the service center, were rectified and the vehicle was handed over to the complainant - registered owner, therefore, there is no fault on the part of opposite party No. 2 and the complaint is liable to be dismissed.
6. Before the District Consumer Forum, Haridwar, no written statement was filed on behalf of the opposite party No. 3.
7. After hearing both the parties to the complaint as well as perusing the documentary and oral evidence, the District Consumer Forum passed the impugned judgment and allowed the consumer complaint and thereby directed the opposite party No. 2 to pay Rs. 20,00,000/- (Rupees Twenty Lakhs only) to the complainant within a month from the date of order.
8. Having been aggrieved by the impugned order, the above mentioned both the appeals have been preferred wherein the appellants have challenged the impugned order.
9. In the appeal No. 138 of 2014 filed on behalf of the Tata Motors Ltd., Bombay House, Mumbai (opposite party No. 2 in the complaint case) has stated in the grounds of appeal that the impugned judgment is patently erroneous, factually wrong, legally perverse, arbitrary, capricious, is without jurisdiction and it is based on surmises and conjectures and without any reasoned finding, hence it is liable to be set aside.
10. In the grounds of appeal, the appellant has further alleged that the respondent No. 1 - complainant is not a consumer as per the explanation as per the provisions of Section-2(d) of the Act and accordingly the present First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 5 complaint is not legally maintainable. It is further alleged that the District Consumer Forum has erred in not considering the fact that because of its own neglects and latches on the part of the respondent No. 1 - complainant, the vehicle had given alleged problem, which was duly rectified by the authorized workshop of the appellant. It is further alleged that as per the operator's Service Book and Warranty Procedures, the respondent No. 1 - complainant was merely entitled for repair / replacement of defective parts and not otherwise, by way of the costs of the vehicle and awarding the costs of the vehicle to the tune of Rs. 20,00,000/- on the pretext that the same was in lieu of the alleged reliefs claimed by the complainant is totally arbitrary, erroneous and is liable to be set aside. It is further narrated in the grounds of appeal that the vehicle was in perfect running condition and the respondent No. 1 - complainant had after due repair, given her satisfaction and she was fully satisfied with the repair / service in the vehicle and she has never complained, but this fact was overlooked by the District Consumer Forum, therefore, the finding is to the contrary to the facts of the case; the respondent No. 1 - complainant was bound to prove her case by cogent evidence of an expert that there was a manufacturing defect, but the same was not proved by the respondent No. 1
- complainant before the District Consumer Forum, hence no cause of action has arisen against the appellant since the respondent No. 1 - complainant was bound to have acted in terms of the warranty and for any required repair could have got the same done under warranty terms and conditions, but by not doing so the respondent No. 1 - complainant made herself disentitled for the alleged claim; therefore, no deficiency in service has been caused by the appellant and services were provided to the respondent No. 1 - complainant well in time and replaced the parts as were desired from time to time under warranty after summoning the same from the appellant but the District Consumer Forum has not considered these facts that she was not entitled to claim any relief and for the part requiring First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 6 changed / service, costing to a few thousand rupees and instead of change of the part, award for the costs of vehicle to such a high extent of Rs. 20,00,000/- (Rupees Twenty Lakhs only) is totally erroneous, arbitrary and whimsical and is liable to be set aside. It is further stated in the grounds that as per the admitted fact the vehicle had covered a run of 35425kms within a span of 17½ months, which meant that the same was run extensively for about 100kms per day on an average basis and had given a perfect service to the respondent No. 1 - complainant, therefore, the impugned judgment was arbitrary, illegal and liable to be set aside. It is further alleged that the manufacturing defect as alleged by the respondent No. 1 - complainant has neither been proved nor in fact existed in the said vehicle. The engine as well as the body / chassis of the vehicle did not contain any manufacturing defect, otherwise the vehicle would not have been covered a distance more than a distance of 35000kms and thus, the finding of the District Consumer Forum is against the settled judgments of the Court. As per the complaint, regarding engine heating and A.C. cooling insufficient had been rectified by change of turbo charger under the warranty without any cost and the vehicle had covered about 7500kms and thereafter no such complaint had been reported and subsequent complaints related to running and mostly due to running repairs or driving habits of the driver have duly been rectified to the entire satisfaction of the respondent No. 1 - complainant. The vehicle in question is in perfect condition and the same only required change of the part / service, accordingly the impugned order is liable to be set aside. It is further stated in the appeal that the District Consumer Forum has erred in awarding the cost of vehicle at such an inflated rate of Rs. 20,00,000/- even which was not claimed by the respondent No. 1 - complainant instead of directing the respondent No. 1 - complainant to take back the vehicle. Therefore, the District Consumer Forum has failed to consider the fact that the vehicle was solely driven, controlled and managed by the employees and mismanaged by them and First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 7 for their negligence and carelessness, the appellant should not have been made liable, wherein the impugned order is preferred and does not warrant any interference, therefore, the appellate court be pleased to allow the appeal with costs and set aside the impugned judgment alongwith other relief as it deems fit and proper in the circumstances of the case.
11. In the appeal No. 272 of 2014 on behalf of the Dada Motors Pvt. Ltd., it is averred that the vehicle in question was purchased by the respondent No. 1 - complainant from the Data Motors Pvt. Ltd., Ludhiana and the vehicle was delivered to the respondent No. 1 - complainant at Ludhiana Showroom, hence the District Consumer Forum, Haridwar has no territorial jurisdiction to dispose of the complaint and rest grounds are the same as alleged in the appeal No. 138 of 2014 filed by the Tata Motors Pvt. Ltd., so there is no need to reiterate them.
12. We have heard the both sides and perused the record available before us.
13. The learned counsel for opposite party No. 1 - Dada Motors has contended that the complaint is not maintainable because the District Consumer Forum has no jurisdiction to try / entertain and decided it as the opposite parties has got no office or branch at office. Moreover the complainant purchased the vehicle from Ludhiana and the delivery was also taken by her from District Ludhiana; hence no cause of action even accrued to the complainant at Haridwar. The learned counsel for the complainant - respondent No. 1 has stated that the District Consumer Forum, Haridwar was fully empowered to hear the complaint having territorial jurisdiction.
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 8
14. In the light of above arguments, we have gone through Section 11(2)(a)(b)(c) of the Consumer Protection Act, 1986 which is reproduced as under;
Section 11 (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
15. Here it is pertinent to mention that in complaint, there are three opposite parties and one of whom (i.e. opposite party No. 3 - I.S. Motors Pvt. Ltd., E-17, Old Industrial Area, Haridwar) voluntarily resides or carries on business or has a branch office or personally works for gain at Haridwar, moreover the defects have accrued in the vehicle in question at Haridwar, therefore, the District Consumer Forum was fully competent to try / entertain the complaint.
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 9
16. So far as the tax invoice letter (paper No. 5/2 of District Consumer Forum) dated 31.10.2012 is concerned wherein it is contained that only the courts of Ludhiana shall have jurisdiction in any proceeding relating to the contract, then it is to mention the above-mentioned tax invoice, does not bear the signature of the complainant - respondent No. 1, hence its terms and conditions are not applicable to the case, hence the plea of the appellant - Dada Motors Pvt. Ltd. is not tenable that the District Consumer Forum, Haridwar has no jurisdiction to try and decide the present complaint.
17. The learned counsel for Tata Motors Pvt. Ltd. has argued that the vehicle in question was not brought for IInd service to the workshop by the complaint, hence there were neglects and latches on the part of complainant due to which vehicle has given the alleged problem which was rectified by the authorized workshop. We have perused the service history (paper No. 14/11 of the District Consumer Forum record) according to it, IInd free service was given and the vehicle in question was taken by the complainant to the authorized workshop for availing IInd free service. Therefore, the plea of the appellant (Tata Motors Pvt. Ltd.) about the neglects and latches on the part of complainant - respondent No. 1 about not bringing the vehicle for IInd free service to its workshop is not sustainable.
18. It is also argued by the appellant that the complainant had purchased the vehicle in question after being completely satisfied with the quality, condition and performance of the vehicle in question and after taking test drive of the vehicle to her entire satisfaction. It is also alleged that the complainant has purchased the vehicle in question after fully satisfying herself about the features and condition of the vehicle and it is incorrect that the appellant had done any deficiency in service. It is further First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 10 contended that had there been any defect in the car, it would not run upto such a long distance of 6687kms. when the engine of the vehicle broke down on 14.02.2013. It is further contended on behalf of appellant Tata Motors that the vehicle was in perfect running condition and the same only required change of part / service. It is also argued that the complainant - respondent No. 1 had after due repair, given her satisfaction and she was fully satisfied with the repair / service in her vehicle and she never complained. The learned counsel for respondent No. 1 has replied that first time the engine of the vehicle was seized due to over-heating and A.C. was also not working properly and the problem accrued in the vehicle was not repaired and again & again the same accrued due to which the complainant sustained financial loss worth Rs. 3.00 lacs.
19. We have perused the record. The pre-delivery inspection check list (paper No. 14/5 to 14/8 on the District Consumer Forum record) shows that on inspection dated 27.10.2012, all the parts of vehicle and body, engine hood, wheels & tyres, dashboard, steering & control etc. were found o.k., even all cables, wiring for correct routing, brakes etc. were also checked and all were found o.k.
20. It is an admitted fact as per the complaint and pleadings that the vehicle in question (bearing Registration No. UK08-AA-0027) was purchased on 23.11.2012. As per the complaint, the complainant complained about the defects in the vehicle in question to the opposite parties in the month of January, 2013 as per para No. 6 of the complaint and thereafter, through legal notice dated 10.07.2013. It means that no written complaint was submitted in the month of January, 2013 by the complainant before the opposite parties mentioning what defects or manufacturing defects accrued in the vehicle in question which needs replacement of the vehicle. There is no such letter / complaint on record First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 11 which could support the version of the complainant that the manufactured defects accrued in the vehicle in question in the month of January, 2013.
21. In para No. 6 of the complaint, it is pleaded that the opposite parties did not pay any attention to her oral complaint, then she sent a legal notice dated 10.07.2012 to the opposite parties with the request to replace her car. The above mentioned notice (paper No. 5/9 on District Consumer Forum record) is available on record which is signed on 16.07.2013 by the counsel. The above notice also indicates that indeed the legal notice on behalf of the complainant was never sent to the opposite parties on 10.07.2013. The fact also goes against the pleadings as contained in the complaint and proving the version of complainant as wrong and incorrect.
22. Now the question arises as to whether during the warranty period, no fruitful service was provided to the complainant or whether there was any manufacturing defects accrued in the vehicle in question for which replacement of the vehicle in question with new one was required. The main question also arises as to whether the vehicle was in perfect running conditions and whether the complainant was fully satisfied with repair / service in her vehicle and never complained of the same defect about any defect or part which was earlier repaired or replaced or whether a vehicle could not cover such a long distance, i.e. more than 35000kms distance if there had been any manufacturing defects.
23. We have gone through the complaint. Para Nos. 3 & 4 of the complaint reveal that some defects accrued in her vehicle in question, but in above para No. 4 no date, time and year is mentioned when in the first time, manufacturing defects or other defects accrued in her vehicle about which she complained before the opposite parties. As per the written statement of Tata Motors Pvt. Ltd, the complainant approached the Tata First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 12 Motors and complained of engine hearting and A.C. cooling insufficient. Paper No. 5/18 dated 07.02.2013 of District Consumer Forum record showing complaint regarding breakdown and starting trouble and paper No. 5/17 dated 07.03.2013 showing bonnet defects (enclosed with complaint) are available on record. Paper Nos. 14/9 to 14/12 (service history) show that on dated 14.02.2013, complaint about cold starting problem, engine over-heating and A.C. cooling insufficient was rectified by removal of engine, as well as by change of turbo charger within the warranty period. At that time, second free service was also given as per service history at 6687kms. As per above paper, first free service on 25.11.2012, [at the distance of 1505kms] second free service on dated 14.02.2013 [at the distance of 6687kms] third free service on dated 09.05.2013 [at the distance of 14378kms] and next scheduled service on 30.06.2013 at the distance of 17107kms, thereafter scheduled service on 30.08.2013 at the distance of 19202kms and on 09.10.2013 at the distance of 22700kms respectively were given. Thus, the service history shows that the complainant availed the second of the vehicle as per the service book / warranty policy. The learned counsel for the appellant- Tata Motors Pvt. Ltd. has argued that the complaints which had been already rectified, were not again complained of and subsequent complaint related to running repairs and mostly due to running repairs or driving habits of the driver, have duly been rectified to the entire satisfaction of the complainant.
24. We have perused the complaint. The complaint does not indicate what defects occurred again and again in the vehicle in question which amounts to manufacturing defects. Apart from, the legal notice dated 16.07.2013 is also silent when the manufacturing defects in the vehicle in question occurred which needs replacement of vehicle with new one. As per complaint, a legal notice on behalf of the complainant was given on 10.07.2013 through her counsel to the opposite party Nos. 1 & 2, but on First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 13 record no such legal notice dated 10.07.2013 is available. The legal notice (paper No. 5/9 of District Consumer Forum) is of the date "16.07.2013"
and the date is written below the signature of the Advocate "Sudhir Tayagi". Thus, such legal notice dated 10.07.2013 has no its legal importance.
25. As per the contention of the appellant Tata Motors the vehicle in question has covered a distance more than 35000kms if had there been any manufacturing defects in the engine or body / chassis, then the vehicle in question would not have covered such a long distance. We are convinced with the above argument placed by the appellant as the manufacturing defects has neither been proved by cogent evidence by the complainant nor it is proved that, in fact, it still existed in the said vehicle. It is also to add, that if the engine or chassis / body of any vehicle contains any manufacturing defects, then that vehicle would not be cover such a long distance, i.e. more than 35000kms.
26. The learned counsel for the appellant - Tata Motors has stated that as per various law, and verdicts of the superior courts / commission, the complainant was bound to prove her case by cogent evidence of any expert after getting the vehicle examined, but the learned District Consumer Forum has failed to consider such vital aspects and passed the Judgment erroneously and arbitrarily which is liable to be set aside.
27. In the case of Thomas Joseph vs Calculo Automotive Pvt. Ltd. & Anr., III (2019) CPJ 77 (Goa), it has been held by the Goa State Consumer Disputes Commission, Panji in para Nos. 9, 10 & 12 as is reproduced below:-
Para No. 9. "The Complainant had purchased the said vehicle on 19/05/2011 and as on 17/03/2012, i.e. in less than three months, the vehicle had run First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 14 27,400 kilometers. By 10/09/2011, the vehicle had covered 10,810 kilometers; by 25/10/2011, it had covered 14,027 kilometers; by 01/11/2011, it had covered 14,567 kilometers; by 22/02/2011, it had covered 25,291 kilometers and by 17/03/2012, it had covered 27,400 kilometers. It should be kept in mind that from 25/10/2011 till 31/10/2011 the vehicle had run 530 kilometers. Having used the vehicle for a substantial running as above, the Complainant cannot be allowed to claim that the vehicle has technical or mechanical defect/s. From the records, it is seen that the vehicle was brought to the service station for different problems every time. According to the Complainant since the vehicle had to be brought to the service station for a repeated number of times, the said vehicle had a manufacturing defect. In the type of the case as before us, manufacturing defect cannot be proved merely by way of affidavit filed by the Complainant and more particularly in a case where the vehicle had already run for 27,400 kilometers. As has been rightly held by the Forum in order to prove manufacturing defect, the Complainant had to produce evidence of some expert. The Forum has relied upon the judgment in the case of "Kumari Namrata Singh vs. Manager Indus - A Division of Electrotherm & Anr.", reported in [2012 (3) CPR 570 (NC)]. In the said Revision Petition No. 2670 of 2010, by judgment dated 06/08/2012, the Hon'ble National Commission has held that simply First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 15 because the vehicle was required to be brought to the service station for curing some defects, it cannot be held positively that it was having some manufacturing defects which were not curable. It has been held that for proving the fact of manufacturing defect, expert opinion is necessary. In the present case, the Complainant has not produced any expert opinion. It is not at all proved that the vehicle has some technical or manufacturing defect. Para No. 10. The Complainant had, inter alia, prayed for refund of the entire price of the car which is Rs. 6,10,500/- along with interest. While claiming the refund of the entire price along with interest the Complainant had forgotten that he had extensively used the vehicle and the vehicle as on 17/03/2011 had run almost for 27,400 kilometers. Be that as it may, the warranty was not produced by the Complainant. Normally, the warranty policy does not provide for refund of the price of the vehicle or replacement of the car but it provides for repairs and/or replacement of defective parts. The Forum has relied upon the Judgment in the case of "Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra and Anr.", reported in [JT 2006 (4) SC 113] wherein the Apex Court has held that as per the agreement between the parties the terms of warranty policy provided only for repairs and/or replacement of defective parts and hence it is unwarranted and unjustifiable to direct replacement of the good itself. In the present case, it is noticed that every time the First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 16 car was brought at the service station, the problem was not the same. On 01/11/2011, the fuel pump of the vehicle was replaced and since then, there was no grievance of the fuel pump. The repairs conducted on 24/02/2012 and those conducted on 25/02/2012 were not the same but completely different. Since the vehicle was used extensively, normal wear and tear was bound to be there. It is seen from the records that every time the vehicle was repaired to the satisfaction of the Complainant and every time the Complainant had signed the satisfaction note."
Para No. 12. In the case of "Jatinder Singh Madan"
(supra), the car was sold during the pendency of the Appeal before the State Commission. The Hon'ble National Commission has held that as the vehicle has been sold by the complainant during the pendency of appeal which was filed in the year 2007 and decided in the year 2012, the complainant ceases to be a consumer under C. P. Act and complaint is liable to be dismissed.
The principle as laid down by the Hon'ble Forum is fully applicable to the appeal in hand.
28. In the case of Kumari Namrata Singh vs. Manager, Indus; Revision No. 2670 of 2010 of National Consumer Disputes Redressal Commission, New Delhi, decided dated 21.04.2010, it has been held by Hon'ble National Commission in para Nos. 7, 8 as under:
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 17 Para No. 7. The booklet regarding the Yo Speed No Petrol Vehicle 750 W, has been filed before the District Forum. It contained details regarding the newly introduced vehicle, its features and conditions of the warranty. It appears to be a battery operated vehicle and the battery is required to be charged as and when needed, the term of warranty was, as has been stated by the appellants/ OPs in written version and warranty is limited upto certain conditions and was only applicable on parts and not on whole vehicle. It is not applicable in case the vehicle is subjected to an accident and was repaired. It has been agreed by the complainant/respondent that the vehicle, was subjected to a road accident after one year from the date of purchase. It shows that the vehicle was running satisfactorily till that period. The nature of the accident regarding the vehicle during that period, has not been clearly stated by the complainant, but it appears that only first free services was availed by the complainant and thereafter free service or paid service was not availed by the complainant. There is no expert opinion, in support of the allegation that the vehicle was having some manufacturing defects. Simply because the vehicle was required to be brought to the Service Station for curing some defects, it cannot be held positively that it was having some manufacturing defects, which were not curable. For proving the fact of manufacturing defect, expert opinion is necessary, which is lacking in the present case and then above all the vehicle was subjected to a First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 18 road accident, which might have adversely affected its mechanism.
Para No. 8. Thus, we find that only on the basis of repairing of the vehicle on few occasions, it cannot be said that the vehicle was having manufacturing defects. The District Forum, has committed an error in giving such finding only on the basis of few repairs. Such finding is not sustainable and is liable to be set aside.
The above cited case law is applicable to this appeal.
29. In the case of Tata Engineering & Locomotive Co. Ltd. & Ors. vs Rajinder Kumar & Ors. AND Rajinder Kaur vs. Dada Motors Limited & Ors., IV (2019) CPJ 482 (NC) the Hon'ble National Commission has held that "more importantly, no expert evidence has been produced by the complainant to prove that there was a manufacturing defect in the bus purchased by him from Dada Motors Ltd. No Automobile Engineer was produced by the complainant to prove that the bus in question suffer from a manufacturing defect. The onus was upon the complainant to prove that the bus purchased by him was suffering from a manufacturing defect. The responsibility of the manufacturer / dealer was to repair the vehicle and replace the defective part, if any, during the warranty period of the vehicle. The buyer can seek replacement of the vehicle or refund of the price paid by him only if he is able to prove such a manufacturing defect in the vehicle, which cannot be conveniently rectified. In the absence of technical evidence, it would be difficult to say that the vehicle purchased by the complainant suffered from a manufacturing defect."
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 19
30. The principles as held in the above cited case law is fully applicable. The complainant has never submitted any expert report / expert opinion in support of her allegation that the vehicle was having some manufacturing defects and mere simple bringing the vehicle to service station for curing routine defects cannot prove to presume that the vehicle was having some manufacturing defects which was not curable. It is also to note that the burden to prove the same was towards the complainant to prove that the vehicle in question purchased was suffering or containing manufacturing defects, but such onus was not proved by the complainant.
31. The learned counsel for the appellant Tata Motors has also contended that the complainant was not a consumer as per the provision under Section 2(d) of the Act, hence the complaint is not legally maintainable.
32. We have perused explanation to Section 2(d) of the Consumer Protection Act, 1986 which is reproduced as under:-
[Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]
33. We have also gone through the complaint, wherein in para No. 11(2) of the complaint, it is averred as under (in Hindi) "11(2) ;g fd f"kdk;rdrkZ dks la;qDr vFkok i`Fkdr% 30]000@& :i;s vU; en ,oa 3 yk[k :i;s ekufld {kfr ,oa xkM+h ds [kjkc jgus ls gqbZ O;kikfjd {kfr 3 yk[k :i;s dqy vadu 18]84]877@& :i;s {kfriwfrZ ds :i esa vnk djsAa "
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 20
34. The same averments were written in the affidavit of the complainant as well as in the affidavit of her husband, which were produced before the learned District Consumer Forum in evidence.
35. The above facts have proved that the vehicle in question was used for commercial use, hence the complainant was not consumer as per the Act. Hence the complaint was not legally maintainable before the District Consumer Forum.
36. The learned counsel for the appellant has submitted that the learned District Consumer Forum awarded the excessive amount which was not claimed by the complainant, hence the learned District Consumer Forum has erred in passing the impugned order.
37. We have perused the impugned order as well as the complaint. In the complaint, the complainant has claimed an amount to the tune of Rs. 18,84,877/- for the costs of vehicle alongwith compensation. Thus, the complainant claimed only Rs. 18,84,877/- but the learned District Consumer Forum has awarded an amount to the tune of Rs. 20,00,000/- (Rupees Twenty Lakhs only) which was not indeed claimed in the complaint, hence the finding of the learned District Consumer Forum was not correct and accordingly to law.
38. Thus, on the appreciation of all the evidence and material available on record, we are of the considered view that the learned District Consumer Forum has not passed the impugned order correctly and properly, it is perverse, erroneous and without jurisdiction; the learned District Consumer Forum has exercised the jurisdiction which was vested in it and with material irregularity and illegality, therefore, the impugned order is liable to be set aside.
First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014 21
39. Accordingly, the appeal No. 138 of 2014 and appeal No. 272 of 2014 are allowed. The impugned judgment is hereby set aside and the complaint shall stand as dismissed. No order as to costs. Copy of the Judgment be kept in the connected appeal No. 272 of 2014.
40. The record of the District Consumer Forum, if any, be returned as per law after expiry of statutory period.
(BHAGWAT SINGH MANRAL) (MS. KUMKUM RANI) First Appeal No. 138 of 2014 & First Appeal No. 272 of 2014