State Consumer Disputes Redressal Commission
Sunil Bhasin vs M/S Tata Engg. & Locomotive Co. Ltd. on 2 February, 2009
1 IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision: 02-02-2009 Complaint Case No. C-357/2001 Shri Sunil Bhasin S/o Late Shri B.L. Bhasin, Through L.R, D-37, South Extension Part-I, New Delhi-110049. . Complainant Through Ms. Pooja Bhasin, Advocate Versus 1. M/s Tata Engg. & Locomotive Co. Ltd. Through its Managing Director, Telco Passenger Car Business Unit, Bombay House, 24, Homi Modi Street, Mumbai-400001. & M/s Tata Engineering & Locomative Co. Ltd. Through its Principal Officer, Passenger Car Business Unit (C.V.D.), Jeevan Tara Building, 5, Sansad Marg, New Delhi. 2. M/s Concorde Motors Ltd. Through its Managing director, Tower No1. JeewanBharti Building, 124 Connaught Circus, New Delhi-110001. .. Opposite Parties Through Mr. Aditya Narain, Advocate 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, PRESIDENT:
1. In this case vide Order dated 22-08-2006 passed by this Commission the complaint of the complainant was allowed by awarding a lump sum compensation of Rs. 5.00 Lacs payable by O.P.1 - manufacturer on return of the vehicle and Rs. 25,000/-
compensation and Rs. 10,000/- cost of litigation payable by O.P.2 - Dealer. However, the OP-manufacturer appealed against the said Order before the National Commission in First Appeal No. 500/2006 and the National Commission vide its Order dated 29th Feb 2008 set aside the above Order of this Commission mainly on the ground that the OP-manufacturer was not given proper opportunity of putting up its version before this Commission, and the matter was remanded back to this Commission for deciding it afresh.
2. Brief facts of the case as alleged by the complainant, which were already discussed in our previous Order dated 22-08-2006, are that the complainant purchased a vehicle Tata Indica Passenger Car for a sum of Rs. 3,26,040/- manufactured by OP No.1/M/s Tata Engineering and Locomotive Co. Ltd. through its dealer OP No.2/M/s Corcorde Motors Ltd. Soon after the purchase of the car the complainant discovered large number of manufacturing , mechanical and electrical defects in the car, which was taken on 30-40 occasions to the garage for removal of the defects and remained idle for 104 days in a short duration of 1 years. Having suffered mentally due to unfair trade practice, manufacturing defects of the car and incurred extra expenses in arranging alternative mode of conveyance the complainant has through this complaint sought compensation of Rs. 8,22,286.06 against return of the car with interest @ 18%.
2. OP No.1 had launched amongst other vehicles Tata Indica Passenger Car and had made wide publicity through media to attract customers and influence the sales.
OP No.1 through OP No.2 had made following representations in respect of the vehicle:-
(a) URO-II-Pollution free (very Lucrative and essential offer in todays time).
(b) More Car per car (as being an absolute trouble free vehicle).
(c) Less consumption of fuel (very economical)
(d) Good Air-Conditioning system providing uniform cooling during the peak summer season (A sound offer for Delhites).
(e) High quality after Sales Service by the Joint Venture of Tata itself.
3. Believing the representations and inducements given by OP No.1 the complainant purchased one TATA INDICA passenger car bearing registration No. DL-3CQ-3291 Engine No. 475IDI02DZZP22655, Chasis No. 600132 DZZP 22752 on May 5th, 2000 from OP No.1 through OP No.2 for a sum of Rs. 3,26,040/- paid a sum of Rs. 5,500/- towards one time road tax charges and another sum of Rs. 11,442/- for insurance of the said car.
4. That soon after the purchase of the said passenger car the complainant discovered the manufacturing, mechanical and electrical defects detailed and described below:-
(a) DEFECTIVE F.I.P. SYSTEM Completely defective from the very 1st day and the repairs done earlier at least 6 times had yielded no concrete results.
(b) HIGH POLLUTION LEVEL Vehicles smoke mean density value remains on higher side and generally remains more than 65% HS.U. the maximum permissible smoke mean density value level. Many times the said vehicle has recorded more than 90% H.S.U. upto 98.6% H.S.U. which is far above the rule 115 (2) of CMV Rules, 1989.
(c) DEFECTIVE ENGINE From the very 1st day problems of Back Compression, Consumption of Engine Oil at rapid speed, sudden increase and decrease of engines pick up, efficiency, smoke level, and electric fuel consumption pattern along with engines and F.I.P. firing order timings change their values at will.
Even after being properly locked and marked with paint by Telcos Zonal Customer Care Officer of OP No.1 Mr. R.K. Saxena himself several times so that no body else can fiddle with the settings.
Even then vehicles timing order was fond out from 3 Deg. To 7 Deg. from the permissible limits whenever it was checked for timing related problems.
(d) PROBLEMS PERTAINING TO AIR CONDITIONING SYSTEM A/Cs compressor makes metal touching and grinding noise/sound, A/C stops cooling at will and some humming sound erupts from behind the dash board when it stops cooling, but the compressor keeps on running and the water starts dripping inside the cabin. Secondly A/C fails to perform well during peak summer hours and continuously keeps tripping when it is required the most. Complaints of the same were lodged several times but no concrete action was taken.
(e) PROBLEMS PERTAINING TO SUSPENSION SYSTEM Present suspension is defective due to which all the four tyres were worn out. Ride (specially for back seaters) is uncomfortable it seems as if the vehicle is running without shock absorbers. The vehicle rattles on slight rough roads jumps and wobbles at higher speeds. Whole road sound comes inside the cabin. Kindly note INDICA 2000s suspension system bears a history of manufacturing defects which Telco also admits and had replaced a few suspension systems for mere publicity sake. Troubles and complaints were rectified by Telco in their modified TATA INDICA V2 version without charging any extra cost for the modified suspension in their V2 version.
(f) DEFECTIVE AXEL/CHIMNEY PIPE- Vehicles front axle/pipe makes occasional grinding sound while turning steering.
(g) DEFECTIVE WHEEL RIMS They get bended itself. OP No.2 had repaired rims several times but to no avail, they loose shape frequently even when the said vehicle is driven on the city road conditions only.
(h) DEFECTIVE LIGHTING AND ELECTRICAL SYSTEMS INCLUDING CABIN ANTINA All inherent defects were repaired several times but the problems still persists.
(i) DEFECTIVE WIND SCREEN Front wind screen has some inborn very tiny pores in which dust gathers and wiper blades are unable to clean that dust.
Secondly columns of unwiped wind screen are left due to manufacturing defects of wind screen glass, due to which it becomes impossible to drive the said vehicle in the night and in light showers.
To rectify the same defects wiper blades were replaced twice at the cost of complainant including labour charges by OP No.2 but again it was in vain.
(j) DEFECTIVE BRAKES They fail (to a great extent) at higher speeds.
(k) PROBLEMS OF AIR LEAKAGES From outside into interior cabin as polluted smell and odours from outside enter inside the cabin even when the doors and windows are completely closed.
(l) PROBLEMS OF A/C EXHAUST SYSTEM- As in rainy season A/Cs cool air leaks near front wind screen resulting in huge columns of moisture accumulating on the lower levels of the wind screen nearly upto 8 inches due to which driving in the said condition becomes very dangerous.
5. The complainant entrusted the aforesaid passenger car with OP No.1 through OP No.2 for check up and removal of manufacturing mechanical and electrical defects, on the dates mentioned below :- 15-5-2000, 25-5-2000, 4-6-2000, 9-6-2000, 11-6-2000, 13-6-2000, 21-6-2000, 26-6-2000, 29-6-2000, 3-7-2000, 18-7-2000, 4-8-2000, 13-8-2000, 31-8-2000, 11-9-2000, 12-9-2000, 4-9-2000, 28-10-2000, 13-11-2000, 6-12-2000, 28-1-2001, 28-2-2001, 24-4-2001, 26-6-2001, 30-6-2001, 1-7-2001, 5-10-2001 and 13-10-2001 (vouchers, job cards and written representations made by the applicant are attached with application) excluding those several other visits on which intentionally no proper job card were issued from the side of OP No.2 and the vehicle was released after repairs by just issuing a gate pass which can be ascertained from the security gate register of OP No.2s workshop 2/A, Old Ishwar Nagar, New Delhi.
6. That OP No.1 through OP No.2 used to keep the car for days together on the dates mentioned above on the pretext of carrying out necessary repairs and removal of inherent manufacturing, mechanical and electrical defects thereby causing undue hardships, physical and mental agony to the complainant as a result of which the complainant was deprived of the benefit of using the said car and had to seek alternative mode of conveyance, taxi service to cater to his needs and had to incur huge amounts as tax fare during the period the car was retained by OP No.1 through OP No.2.
7. That despite having retained the vehicle of the complainant for considerable portion of the year the manufacturing, mechanical and electrical defects as detailed and described above could not be rectified by OP No.1 through OP No.2.
Details of dates vehicle remained with OP No.2 and remained idle due to its becoming risky and unroadworthy for 104 days, are given in para 9 of the complaint.
8. Complaint was contested by OP No.2 only. OP No.2 denied all the allegations in toto and absolved itself from the charge of deficiency in service firstly being not the manufacturer of the vehicle and secondly having attended to all the complaints of the complainant regularly and having undertaken to remove all the defects. Perusal of the reply filed by OP No.2 shows that there is bald denial of the allegations in respect of the defects pointed out above, though visits of the complainant for taking the vehicle to the garage for removal of the defects have not been specifically denied.
9. In support of the allegations the complainant has produced and proved the following documents:-
(a) Ex. A1 is copy of invoice of OP No.1.
(b) Ex. A2 is copy of invoice in lieu of sale of the Car Tata Indica DL-3C-!-3291. (c) Ex. A3 is copy of vehicles insurance. (d) Ex. B1 & B7 copies of pollution certificate of Tata India Euro II. (e) Ex. B8 copy of Pollution Certificate of complainants another Diesel driven Non Euro vehicle. (f) Ex. C1 to C 11 copies of the job cards
of OP No.2 for troubles and complaints of the car.
(g) D1 to D 9 copies of invoices raised by OP No.2 in lieu of repairing vehicle and statement of the parts replaced.
(h) Ex. E1 to E 3 Copies of representations made by the complainant to OP NO.1 and OP No.2 and to the Advisor, FICCI, New Delhi and also the copy of reply to Advisor, FICCI from OP No.1.
(i) Ex. F1 to F4 Copies of replies received from OP No.1 to OP No.2 by the complainant.
(j) Ex. G1 to G2 Copies of legal notices to OPs.
(k) Ex. H1 to G3 & G4 Copies of the bills for the repairs of the defective car and copy of page No.16 of Sunday 18-11-2001 of Hindustan Times, New Delhi.
10. As regards the liability of OP No.2 vis--vis the defects in the car and retention of the car for 104 days for removal of defects, the complainant has produced the document i.e. news item published in the Hindu Business Line Tata buy out Jardine stake in Concorde that OP No.2 has bought Jardine Motors 50% stake in its joint venture dealership company with OP No.1, Concord Motors Ltd, set up to market Indica. However, in the new structure the OP No.1 was to hold 40% stake while Tata Industries Ltd. 44.4% stake and Tata Finance Ltd. 6.6%. The news item reads as under:-
Tatas buy out Jardine stake in Concorde Mumbai, Sept. 12 The Tata group has bought Jardine Motors 50 per cent stake in its joint venture dealership company, Concorde Motors Ltd, set up to market Indica.
Cocorde Motors Ltd. was set up as a 50:50 joint venture between the Tata Group and Jardine Motors about five years ago.
In the new structure, Tata Engineering will hold 49% stake, Tata Industries Ltd. 44.4 percent stake and Tata Finance Ltd. 6.6 percent.
According to an official at the Tatas, foreign equity holding was posing as a restraint for certain transactions.
Besides, Jardine Motors was looking to exit primarily because business was not growing as originally conceived, an official of the foreign company said. This prompted Concorde Motors Ltd. to close down its units at Delhi, Ludhiana, Surat, Mumbai and Lucknow.
The start-up losses were high.
Thereafter, the business focus was shifted to the southern cities of Bangalore, Chennai and Hyderabad.
The Jardine Motors official said the foreign partner had been forced to exit at a loss, but declined to give any financial details.
11. At the outset the counsel for the OP has contended that the complainant has not come with clean hands in as much as the complainant has suppressed the factum of the vehicle having met with an accident and the complainant has deliberately concealed the job cards in respect of the accident because the warranty clause specifically provides that in case of accident the warranty would come to an end. As per the OP the car has covered 80000 Kms and therefore it is very clear that the vehicle was not suffering from any manufacturing defects and the complainant has extensively used the vehicle and still using the car which is in the possession of the complainant and therefore no manufacturing defects can be attributed to the OP.
12. However, the counsel for the OPs has argued that none of the correspondence being relied upon by the complainant has been proved and the correspondence is contradictory to the job cards because the correspondence is not reflected in the job cards. The complainant has failed to prove that the vehicle was having any manufacturing defect. No expert opinion/evidence as per Sec. 13(1)
(b) of the Consumer Protection Act has been produced which is a mandatory procedure to be followed.
13. Secondly, the complaint has been filed after the expiry of warranty on 3-12-2001 and the car was purchased on 5-5-2000. Further the Pollution Certificate does not pertain to the vehicle in question and the other certificates are also incomplete and cannot be relied upon.
14. Apart from the fact that the accident was suppressed the complainant was visiting several unauthorized workshops and the possibility of some improper handling cannot be ruled out which also brings the warranty to an end.
15. On the other hand, the Ld. Counsel for the complainant has contended that since the FIPs were not being repaired in the workshop of the OP-2 so people approach the manufacturers TVS Lucas and that in order to mislead the Commission, OP-1 had taken a plea that the complainant is not entitled for warranty benefits as he had taken the defective vehicle to an unauthorized and local workshop for repairs in reply to which vide letter dated 21-6-2000 the complainant had categorically mentioned that the car in question was taken to M/s. Lucas TVS, on the advice of Service Manager of OP-2, which is also a service station of OP-1, for checking the fuel consumption and pollution level of the vehicle. Further that had there been any such unauthorized act or negligence on the part of the complainant in taking the vehicle to an unauthorized workshop the OPs would have terminated the warranty there and then and in the absence of any such evidence the allegation is false and vague. Further that the complainant had placed on record the job cards and bills as mentioned above.
16. It was further contended by the counsel that during the warranty period the vehicle was never taken to any unauthorized workshop.
As regards the allegation of concealment of accident, it is contended that the vehicle was taken to the workshop of OP-2 after the accident which was well within the knowledge of OP-1. Still it is not borne out from the facts that the defects in the vehicle arose because of the accident.
17. We have accorded careful consideration to the rival claims and contentions of the parties and to the documents available on record.
18. In this case things speak for themselves. OP No.1 launched the vehicle in question by making wide publicity through media to attract customers by spelling out the special features of the vehicle as referred above. But when the vehicle was brought on the road it proved to be a complete failure. Its FI system was totally defective. It had a high pollution level. The engine was defective with the problems of back compression, consumption of engine oil at rapid speed, suddenly increased and decreased and affected engines pick up, efficiency, smoke level etc. There were problems pertaining to A/C system. So much so the suspension system was very defective due to which all the four tyres were worn out soon. The vehicle rattled on slight rough roads and wobbled at higher speed. Its front axle/pipe was defective. Wheel rims were highly defective. Lighting and electrical systems including cabin antenna also suffered from inherent defects. The wind screen was so defective that it had very tiny pores in which dust gathered which was not removable by the wipers. So much so the brakes were also defective as they failed to operate at high speed. There was a problem of air leakage. There was problem of A/C exhaust system. The vehicle was taken for removal of defects on large number of occasions between June, 2000 to September, 2001. At times vehicle was retained for more than 5, 6, & 13 days and lastly it was retained for removal of defects for 27 days.
19. The false and misleading representations concerning quality, quantity and standard of the vehicle and its usefulness are writ large on the face of it. Such a representation was nothing but complete deception and fraud upon the consumers at large. Vehicle had large number of defects including manufacturing defects.
20. It is 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.
21. 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.
22. According to this definition, any kind of shortcoming, fault, imperfection, or inadequacy in the quantity, nature and manner of performance renders the goods defective.
23. 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.
24. In view of the foregoing discussion, we allow the complaint in the following terms:-
i) O.P-1 manufacturer shall pay a sum of Rs. 5,00,000/- (Rupees Five Lacs) to the complainant on return of the vehicle to OP No.1.
ii) OP No.2 Dealer shall pay Rs. 25,000/- as compensation and cost of litigation of Rs. 10,000/-.
iii) The vehicle shall be returned to OP No.1 within one month on receipt of above amount from OP No.1 and OP No.2.
25. Complaint is disposed of in aforesaid terms.
26. The above directions shall be complied with within one month from the receipt of a copy of this Order.
27. Copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK