State Consumer Disputes Redressal Commission
Hind Motors (India) Ltd. vs Kehar Singh & Ors on 16 May, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. (1) First Appeal No: 162/2010 Date of Decision: 16.05.2012. Hind Motors (India) Limited, 9 & 15, Industrial Area, Phae-1, Chandigarh. Appellant Versus 1. Shri Kehar Singh, V.P.O. Jeori, Tehsil Rampur, District Shimla, H.P. 2. Tata Motors Limited, Mumbai, Through its General Manager. 3. Tata Motors Finance, A Division of Tata Motors Limited, Through its Manager, Bombay House 24, Homo Mody Street Mumbai-400001. Respondents For the Appellant: Mr. Anil Tanwar, Advocate. For the Respondent No.1: Mrs. Ritta Goswani, Advocate. For the Respondent No.2: Mr. Romesh Verma, Advocate. For the Respondent No.3: None. (2) First Appeal No: 171/2010 Date of Decision: 16.05.2012 Tata Motors Limited, Mumbai, Through its General Manager, Through its Manager Legal, i.e. Mr. M.S. Pradeep, Commercial Division, 5 Jeewan Tara Building, Sansad Marg, New Delhi. Appellant Versus 1. Shri Kehar Singh, V.P.O. Jeori, Tehsil Rampur, District Shimla, H.P. 2. Hind Motors India Limited, 9 & 15, Industrial Area, Phase-1, Chandigarh-161002. 3. Tata Motors Finance, A Division of Tata Motors Limited, Through its Manager, Bombay House 24, Homo Mody Street Mumbai-400001. Respondents Coram Honble Mr. Justice Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member Honble Mrs. Prem Chauhan, Member Whether approved for reporting?[1] For the Appellant: Mr. Romesh Verma, Advocate. For the Respondent No.1: Mrs. Ritta Goswami, Advocate. For the Respondent No.2: Mr. Anil Tanwar, Advocate. For the Respondent No.3: None. O R D E R:
Justice Surjit Singh, President (Oral) By this common order, we proceed to dispose of two appeals, one filed by M/S Tata Motors Limited and another by M/S Hind Motors India Limited, both of whom were co-opposite parties in a complaint, instituted against them by respondent, Kehar Singh.
2. Order assailed by both the appellants is the same, i.e. order dated 15th March, 2010, of learned District Consumer Disputes Redressal Forum, Shimla and the grievance of the two appellants is also the same, viz. the order directing them to replace the vehicle is illegal.
3. We may state the facts relevant for the disposal of two appeals. Respondent, Kehar Singh, hereinafter referred to as complainant, purchased a Tata Sumo Victa, from M/S Hind Motors India Limited, appellant in F.A. No.162/2010 and hereinafter referred to as opposite party No.2. M/S Tata Motors Limited, appellant in F.A. No.171/2010 and hereinafter referred to as opposite party No.1, is the manufacturer of the vehicle. Vehicle was purchased on 10.11.2005. Loan for the purchase of the vehicle was taken by the complainant from M/S Tata Motors Finance, who was impleaded as opposite party No.3, in the complaint and is respondent No.2, in both the appeals.
4. During the warranty period, the vehicle developed major defects. Vehicle was taken to the workshop of opposite party No.2. Its poly V belt and AC belt were replaced on 16.05.2006. By that time, the vehicle had covered 21775 kilometers. Vehicle did not give satisfactory service, even after the replacement of the aforesaid two belts and it had to be taken again to the workshop of the opposite party No.2, sometime in the last weeks of July, 2006. By then, the vehicle had covered a distance of 26790 kilometers. Opposite party No.2 replaced the fuel pump value of which is stated to be `50,000/-. It was replaced free of cost, as the warranty period had still not expired. Again, the vehicle developed some major snag and it became difficult to move it. Opposite parties were approached to remove the defect and in case the defects were not removable, to replace it, but to no avail. Complainant then filed a complaint, under section 12 of the Consumer Protection Act, 1986, seeking issuance of a direction to the present appellants to replace the vehicle and also to compensate him for supplying him a defective vehicle, which caused him harassment and mental torture.
5. Both the appellants contested the complaint by filing separate written replies. They challenged the territorial jurisdiction of the learned District Forum. They denied that the vehicle had any inherent defect, requiring its replacement by a new one. They stated that vehicle had been overused and it was because of such overuse that it had developed some problem. It was stated that its fuel pump and two belts had been replaced free of cost, during warranty period.
6. On an application moved by the complainant, Works Manager, HRTC, Rampur Bushehar, was appointed as Local Commissioner by the learned District Forum for inspecting the vehicle and making report. Said Manager reported as follows:-
1. When vehicle start it found that engine giving excess black smoke.
2. Vehicle checked for pollution and found that vehicle is giving HSU more than 65% & failed in test level. Rejection slip is enclosed.
3. Vehicle driven by me on slightly hilly road and found that pulling power of vehicle is very poor. Even the vehicle was empty and running only first and second gear.
4. During the test drive the vehicle got also overheated. Submitted please.
7. Learned District Forum then allowed the complaint and ordered the appellants to replace the vehicle within 45 days and to pay a sum of `20,000/-, as compensation and `3,000/-, as litigation cost. Appellants are aggrieved by this order.
8. We have heard learned counsel for the parties and gone through the record.
9. An application has been moved by M/S Tata Motors Limited, for appointment of another expert for inspection of the vehicle and reporting whether the defect in the vehicle is such that it cannot be removed and the vehicle requires replacement. Matter has been pending with learned District Forum and this Commission for the last six years. Application was moved by M/S Tata Motors Limited, for the first time before this Commission on 08.05.2010. No explanation has been given in the application for not approaching the leaned District Forum itself for appointment of the Local Commissioner.
10. Moreover, learned District Forum had appointed a Local Commissioner and the order was passed in the presence of the counsel for M/S Tata Motors Limited. Local Commissioner appointed by the learned District Forum, namely Works Manager, HRTC, Rampur Bushehar, submitted his report on 07.05.2007. No objection qua that report was filed. Therefore, in our considered view, the present application merits rejection.
11. It is submitted on behalf of the appellant M/S Tata Motors Limited that the learned District Forum did not have the territorial jurisdiction, as the vehicle was manufactured in Maharashtra State and it was sold to the respondent/complainant, at Chandigarh. It is true that in the reply an objection to the territorial jurisdiction of the learned District Forum was raised. Learned District Forum has returned a finding holding that it had the territorial jurisdiction. This finding has not been challenged in the grounds of appeal. Objection is with regard to the territorial jurisdiction and not to the inherent jurisdiction of the learned District Forum and therefore the appellant cannot be heard when the finding qua this objection returned by the learned District Forum, has not been challenged in the grounds of appeal.
12. Another submission made on behalf of the appellants is that there is no evidence on record indicating that there was any manufacturing or inherent defect in the vehicle sold to the complainant necessitating the passing of harsh order of replacement of vehicle.
13. We do not find ourselves in agreement with the submission. Consumer Protection Act, nowhere says that the goods can be ordered to be replaced only when some manufacturing defect is pointed out. It suffices in case the complainant is in a position to show that the goods are defective and the supplier has not been able to remove the defect despite his having made attempts. In the present case, vehicle was taken twice to the workshop of opposite party No.2, as noticed hereinabove, while giving summary of the facts. Both the times, some parts were replaced. One of the replaced part was fuel pump worth `50,000/-. Despite replacement of that pump, the vehicle has been found to be lacking pulling power and its engine getting overheated, per report of the Local Commissioner, appointed by the learned District Forum. The substance of Local Commissioners report has been reproduced hereinabove.
14. It is also submitted on behalf of M/S Tata Motors Limited that the vehicle was overused by the complainant, as he covered more than 31000 kilometers in just 9 months of the purchase of the vehicle. Submission has been noticed only to be rejected. Total mileage covered by the vehicle is only 31495 kilometers in 9 months, i.e. to say about 3500 kilometers per month and therefore, it cannot be said to be a case of excessive use of vehicle.
Otherwise also, there is no limit for driving the vehicle to a certain limit, within given period.
15. It is also submitted on behalf of M/S Tata Motors Limited that the vehicle was being used by the complainant for commercial purpose and therefore, the complainant was not a consumer. This submission is also without merit. No such plea was raised in the complaint. Also, the vehicle is registered as a private car and no evidence has been brought on record that it was being used for any commercial purpose.
16. Another submission made on behalf of the appellants is that the vehicle has been with the complainant right from the very beginning and he is supposed to have been making use of it and therefore, his plea that the vehicle is unserviceable, cannot be believed. It is true that the vehicle is with the complainant, but we find no evidence on record indicating that he has been using it. Learned counsel representing the complainant says that the vehicle has been lying stationary.
17. In view of the above stated position, we do not find any merit in the two appeals filed by the appellants, i.e. the dealer and the manufacturer of the vehicle and, therefore, the same are dismissed. But in view of the last submission made by appellants counsel that the vehicle is supposed to be being used by the complainant, we order that in case the vehicle is shown to have been driven for more than 2000 kilometer from the last recorded mileage, i.e. 31495 kilometer, the appellants shall not be liable to replace the vehicle and in that event, they will pay a sum of `2.00 lacs, by way of damages for supplying a defective vehicle, to the complainant.
18. This order shall be placed on the record of F.A. No. 162/2010 and its one authenticated copy on the record of F.A. No.171/2010.
19. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member May 16, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?