National Consumer Disputes Redressal
Dr. P. C. Sunil vs Tata Engineering & Locomative Co. Ltd. & ... on 8 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3114 OF 2015 (Against the Order dated 28/11/2014 in Appeal No. 955/2012 of the State Commission Kerala) 1. DR. P. C. SUNIL S/O COL. P.J. CHERIAN, FLAT 4F,SEAWOOD ANCHOR APARTMENTS CHITTETHUKARA, KAKKANAD ERNAKULAM-682037 KERALA ...........Petitioner(s) Versus 1. TATA ENGINEERING & LOCOMATIVE CO. LTD. & ANR. PASSENDER CAR DIVISION,26TH FLOOR, WORLD CENTRE, CUFF PARADE MUMBAI-400005 MAHARASHTRA 2. BENZ MOTORS AUTHORISED DEALER FOR TELCO BENZ TOWERS EDAPPALLY ERNAKULAM-682024 KERALA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Saurabh Bhargavan, Advocate For the Respondent :
Dated : 08 Mar 2016 ORDER HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
1. The petitioner/complainant purchased a Tata Indica car on 30.05.2000 for a consideration of Rs. 3,29,633/-. The aforesaid car carried warranty for a period of 1½ years. According to the complainant/petitioner, the said car developed mechanical fault right from the time it was purchased. Initially, it was the clutch assembly and gear box unit of the car which started making noise, whenever the clutch was used. When the problem increased, the complainant approached the opposite party no. 2 Benz Motors, a sales and service dealer of the manufacturer Engineering & Locomative Company Ltd., for rectifying the aforesaid defect. According to the complainant, even after first service of the vehicle, it had abnormal sound from its engine, dashboard, drive shaft and gear box. When he took the vehicle to the service dealer, only the oil was replaced and valve shims were changed. The complainant again approached the said dealer with a complaint of valve clearance noise, vehicle stalling in the third gear and engine vibrating excessively when hot. According to the complainant, only the alternator of the vehicle was changed. Later, the air-conditioner of the car stopped working which was later rectified but continued to make noise. This is also the case of the complainant that despite his taking the vehicle several times to the aforesaid dealer, the defects in the vehicle were not removed. The allegation of the complainant was that the vehicle continued to develop one fault or the other but at no point of time, all the faults in the vehicle were removed. The complainant approached the concerned District Forum on 23.10.2001 seeking reimbursement of the entire amount paid by him for purchase of the vehicle and also sought compensation quantified at Rs. 1 lac.
2. Though the petitioner has not placed on record a copy of the written version filed by the opposite parties, a perusal of the order of the District Forum dated 14.06.2002 passed in OP No. 1000/2001 shows that the complaint was resisted by the said opposite parties on a number of grounds. It was inter-alia alleged in the reply that all the defects brought by the complainant to their notice were duly attended to and cured to his satisfaction as recorded in the job cards opened at the time the vehicle was brought to the dealer. It was further stated in the reply that the vehicle did not suffer from any defect much less any manufacturing defect and there was no deficiency in the services rendered to the complainant/petitioner.
3. The above referred order of the District Forum shows that during the course of hearing, it was agreed that the complaint could be disposed of by giving a direction to the opposite parties to remove the defects pointed out in the report of the Commissioner, Ex. C-1. The District Forum therefore, allowed the complaint by directing the complainant to take the vehicle to another Authorized Service Centre at Ernakulam namely Koyenco Motors, which was to remove all the defects noted in the report of the Commissioner within a period of two weeks. It was further directed that on entrustment of the vehicle to Koyenco Motors, the second opposite party i.e. the service dealer would stand exculpated from its liability under the warranty which it had given to the complainant and which was expiring on 29.05.2003.
4. On 05.07.2002, the vehicle was entrusted for removing the defects in terms of the order passed by the District Forum and it was returned to him on 19.07.2002. The complainant however, claimed that three defects in the vehicle referred in a report dated 03.12.2003 had not been rectified. He therefore, filed E.P. No. 90/2002 seeking rectification of those three defects. The aforesaid E.P. copy of which has not been filed by the complainant, came to be decided vide order dated 05.04.2004 with a direction to the petitioners to rectify the three defects mentioned in the inspection report dated 14.05.2002 which the Commissioner had filed before the District Forum. The copy of the report dated 03.12.2003 has not been filed by the petitioner. Being aggrieved from the aforesaid order, the opposite party Tata Motors Ltd. (formerly known as Tata Engineering & Locomative Company Ltd.) filed an appeal before the concerned State Commission being appeal no. 289/2004. The said appeal came to be decided by the State Commission on 11.01.2010. The State Commission dismissed the appeal, thereby maintaining the order passed by the District Forum on 05.04.2004.
5. Another expert was appointed after the above referred decision of the State Commission. The said expert submitted a report stating therein that some defects were still there in the vehicle. S.T. No. 01/2011 was then filed by the opposite party in OP No. 1000/2001 in which an order dated 07.12.2012 was passed by the District Forum, which imposed a fine of Rs. 10,000/- upon the opposite party. Copy of the said S.T. No. 01/2011 however has not been filed by the petitioner. Being dissatisfied with the aforesaid order, the complainant preferred an appeal before the concerned State Commission challenging the aforesaid order dated 07.12.2012. The opposite party also filed an appeal challenging the said order. Vide common order dated 28.11.2014, the State Commission dismissed appeal no. 955/2012 filed by the complainant but allowed the appeal filed by the opposite party. The order passed by the District Forum on 07.12.2012 in S.T. No. 01/2011 was set aside. Being aggrieved from the aforesaid order of the State Commission, the petitioner is before us by way of this revision petition. Since there is a delay of more than five months in filing the revision petition, an application seeking condonation of the said delay has also been filed.
6. It would be pertinent to note here that vide impugned order dated 28.11.2014, the State Commission had also made certain adverse observations against the petitioner as well as his advocate and I.A. No. 158/2015 was filed seeking expunge of the said adverse remarks. The aforesaid I.A. came to be disposed of on 23.02.2015. The District Forum found no justification for expunging the adverse remarks which it had made in its order dated 28.11.2014.
7. The first question which arises for our consideration in this petition is as to whether the petitioner has satisfactorily explained the delay of more than five months in filing this revision petition. It is alleged in the application seeking condonation of the said delay that since there were some stricture against the counsel in the judgment, the said counsel filed an application which came to be disposed of on 23.02.2015 and the copy of the order dated 23.02.2015 disposing of the said application was made available to the counsel for the petitioner only on 26.03.2015. It is further stated in the application that neither the order dated 28.11.2015 nor the order dated 23.02.2015 was brought to the notice of the petitioner by the clerical staff of the counsel whom he had engaged before the State Commission and it was only on 28.09.2015 that the certified copy of the impugned order was received by the petitioner. However, no affidavit of the counsel representing the petitioner before the State Commission has been filed, to satisfy us that the order dated 28.11.2014 was brought to the notice of the petitioner. On a perusal of the copy filed by the petitioner, we find that it has been issued by the Registry of the State Commission on 26.03.2015. In these circumstances, it would be difficult for us to accept the plea that the aforesaid order dated 28.11.2014 came to the notice of the petitioner only on 28.09.2015.
Even if we proceed on the assumption that the copy of the order was received by the petitioner only on 28.09.2015, there is no explanation for the delay between 28.09.2015 and 07.12.2015 when this revision petition was actually filed.
8. Coming to the merits of the case, it is an admitted position that the vehicle had been driven by the complainant for more than 1 lac kms by the time it was examined by the Commissioner on 28.12.2010, the meter reading of that date being 106929. The said reading was 105495 when the vehicle was serviced on 08.09.2010. It is thus evident that there could be no serious defect not to talk of a manufacturing defect in the vehicle and that is why the complainant could drive it regularly for more than 1 lac kms. The State Commission noted in this regard that the vehicle was regularly taken for service and was being plied after the said servicing. It is also an admitted position that pursuant to the order of the District Forum dated 14.06.2002, the vehicle was taken for removing the defects pointed out in the report of the Commissioner, Ex. C-1. We are in agreement with the State Commission that in the absence of a finding as to which of the defects noted in the report, Ex. C-1 had not been rectified, there was no reason to pass the subsequent orders which the District Forum came to pass in this case. The expert appointed by the District Forum did not opine that the vehicle suffered from a manufacturing defect. It is only in a case of manufacturing defect that the manufacturer can be asked to either replace the vehicle or refund the sale consideration to the buyer. The normal defects which a vehicle develops due to regular use and wear and tear are to be rectified free of cost during the period of warranty but once that period is over, the buyer has to pay for any defect which the vehicle develops thereafter. In fact, the engine of a car otherwise becomes due for an overhaul, once it has been driven for more than one lac kms. The State Commission rightly felt that under the garb of seeking rectification of the defects mentioned in the report, Ex. C-1, the complainant was seeking rectification of the defects which the vehicle developed thereafter. Such defects could not have been addressed by the District Forum in the execution petition filed before it.
9. For the reasons stated hereinabove, we do not deem it appropriate to interfere with the order passed by the State Commission in exercise of our revisional jurisdiction. This is more so when there is a delay of more than five months in filing the revision petition. We therefore, dismissed the revision petition with no order as to costs. However, since we find no justification for the adverse remarks made by the State Commission against the petitioner and his counsel, the said remarks are expunged from the order of the State Commission.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER