State Consumer Disputes Redressal Commission
M/S Hind Motors India Limited vs Bhagwan Singh on 28 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION UT CHANDIGARH First Appeal No. A/291/2008 (Arisen out of Order Dated in Case No. of District ) 1. M/s Hind Motors India Limited 15 Industrial Area, Phase I, Chandigarh ...........Appellant(s) Versus 1. Bhagwan Singh 123, Ist Floor, Old Ropar Road, Manimajra, Chandigarh ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Jasbir Singh PRESIDENT DEV RAJ MEMBER For the Appellant: For the Respondent: Dated : 28 Feb 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 291 of 2008 Date of Remand : 05.10.2016 Date of Decision : 28.02.2017 M/s Hind Motors India Ltd., Registered Office, 15, Industrial Area Phase-I, Chandigarh through its General Manager, 15, Industrial Area, Phase-I, Chandigarh. ...Appellant V e r s u s 1] Bhagwan Singh S/o Joginder Singh, R/o House No.123, Ist Floor, Old Ropar Road, Manimajra, Chandigarh. 2] Tata Motors, through its Manager, SCO No.170-172, Ist Floor, Sector 17-C, Chandigarh. 3] Tata Motors, Marketing & customer Support, Passenger Car Business Unit, 8th Floor, Centre No.1, World Trade Centre, Cuffee Parade, Mumbai- 400005. ...Respondents Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 25.3.2008 passed by District Consumer Disputes Redressal Forum-I, U.T. Chandigarh in Consumer Complaint No.839/2007 . Argued by: Mr.Rakesh Bhatia, Advocate for the appellant. Mr.Ravi Nayak, Advocate for respondent No.1 Mr. Vivek Khadwal, Advocate for respondents No.2 & 3. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MR.DEV RAJ, MEMBER
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT Respondent No.1/Complainant namely Bhagwan Singh purchased one car from appellant/OP No.1 on 19.01.2007 for an amount of Rs.7,40,034.35. (Invoice is available on record as Annexure C-1). The said car was manufactured by respondents/Opposite Parties No.2 & 3. The complainant raised a loan, for which he was to pay EMI @Rs.15208/- per month. Within one week of its purchase, the car developed some snag. It was taken to the workshop of OP No.1. The complainant was told that there was some problem with computer sensor. It was repaired and car was returned to the complainant. No job card was prepared for the said date. On 2.7.2007, again some problem was faced by the complainant. He took it to the workshop of OP No.1. After changing wiring etc., the car was returned within a week. In 3rd week of July,2007, again problem was faced. The car was taken to the workshop of OP No.1. It was noted that there was leakage in the chamber of engine and some other problems. It was repaired and returned to the complainant. Job card has been placed on record as Annexure C-2. Again it developed a snag and after repair, as per job card Annexure C-3, it was returned on 31.7.2001. Again the car did not function properly. It was taken to the workshop of OP No.1. He was told that there was problem in the Head of engine, Fuel pump, A.C. which was not giving proper internal cooling. The complainant was told that all the parts needed to be replaced. Since it was to take a long time, and the complainant instead of enjoying the luxuries of the new car had already spent more time in the workshop of No.1 for repairs, he purchased another new car so that his work did not suffer. Thereafter, legal notice was sent on 17.9.2007 but it also failed to get any positive result. By stating that a defective car with lot of defects was sold to him , alleging unfair trade practice and deficiency in providing service, consumer complaint bearing No.839 of 2007 was filed before the District Consumer Disputes Redressal Forum(I), U.T. Chandigarh (for short 'the Forum') only.
2. Upon notice, reply was filed by OP No.1 controverting the facts, alleged by the complainant. It was stated that the car was not being maintained as per terms and conditions of warranty, which was for 18 months or upto 50000 Kms., whichever was earlier. It was specifically stated that the car was brought to the workshop of OP No.1 only on 15.3.2007 and not prior thereto. Against Job card Annexure R-3, free service was provided. It was specifically denied that there was any problem with sensor, as alleged. After free service, car was returned on payment of Rs.224.08p. It was specifically denied that the car was not brought in the workshop on 2.7.2007, as alleged. It was brought to the workshop only on 17.7.2007 and after general check up, consumable items like oil filter and engine oil were replaced against payment of Rs.1150/-. It was specifically stated that there was no complaint of engine chamber, as alleged. Wiring was not defective. It was admitted that the vehicle was brought to the workshop of OP No.1 on 30.7.2007 complaining some defect in lighting system. The above said defects were rectified. It was further stated that neither due payment was made, nor the car was taken by the complainant and for doing so, garage charges @ Rs.300/- per day would be imposed.
Opposite Parties No.2 & 3 also filed their joint written reply, supporting the defence taken by OP No.1.
3. The Forum, found as a matter of fact, that an attempt was made by the Opposite Parties to mislead it (Forum) by putting false plea that on 2-3 occasions, the car was not taken to the workshop, as alleged by the complainant. The above fact came out when reading the job card placed on record. Further job cards were also placed on record for the repairs which was done by the OPs. It was specific case of the appellant/OP No.1 that the car was taken to the workshop twice over i.e. 15.3.2007 and 17.7.2007. Above pleas were found false by the Forum, by observing as under ;
"The car developed problem 6 times within 7 months. It was taken to the workshop 6 times. We cannot believe that there was no problem in the car and the complainant instead of enjoying its luxury was naïve enough to take it to the workshop time and again without any problem. No rational man would take the car to the workshop for repairs unless there was some defect in it. The OPs have concealed the true facts and have not produced the relevant record in which the defects are mentioned. There is no reason to disbelieve the complainant. The defects mentioned by the complainant are that there was problem with computer sensor, it was got repaired but again a problem arose due to which the car was retained for replacing the same. Since the OPs have not produced the record to show that the sensor part has been replaced, we are of the opinion that the defective sensor part is still fitted in the car. According to the complainant, he was told that there was defect in the wiring of the car and the same would be replaced. The car was retained by the OPs for about week starting from 2.7.2007. The OPs have not produced any record to show if they have replaced the wiring of the car. We are, therefore, of the opinion that the defective wiring continues in the car and the OPs have failed to rectify the defect. The next problem was the leakage in the chamber of the car. According to the OPs, there was no such problem which means that even the leakage in the chamber of the car has not been repaired so far. When again the car was taken in the last week of August,2007 to the workshop, it had so many defects as mentioned in Annexure R-5. The car is retained with the OPs but they are not repairing the same. All this shows that the OPs have delivered to the complainant a car with manufacturing defect and have caused him harassment. Even in spite of repeated opportunities granted to the OPs by the complainant by taking the car to their workshop, the OPs have failed to rectify the defects which shows that the defects cannot be rectified and the car could not be repaired due to the manufacturing defects.
The facts enumerated above show that the OPs by delivering a defective car have harassed the complainant. They are enjoying the fruits of Rs.7,40,034.05 for which the car was purchased by the complainant. On the other hand, the complainant is shuttling between his house and the workshop for repair of the car since January,2007. He has been not only deprived of the luxury of the car on which he has spent a huge amount but has also been put to great inconvenience and harassment for which the OPs are directed to pay a compensation of Rs.one lakh to the complainant."
4. It was noticed, as a matter of fact, that the complainant was put to lot of harassment. There was manufacturing defect in the car and despite within warranty, it was not repaired. Noting facts, as referred to above, it was ordered that let Opposite Parties supply a brand new car to the complainant, without any payment, in lieu of car earlier sold, within a specified period. Further, compensation of Rs.one lakh was awarded in favour of the complainant, which was to be paid jointly and severally by all the Opposite Parties. The amount was ordered to be paid in a specified period, failing which, it was to entail penal interest. Rs.5000/- were awarded towards litigation charges.
5. Against above order, appellant/Opposite Party No.1 filed appeal bearing No.291 of 2008. Notice was issued on 1.5.2008. Mechanical Department of Punjab Engineering College, Chandigarh was appointed as an expert to examine the car, at the cost of the appellant, to report whether there was any manufacturing defect or not. The appellant was directed to produce the car before the Head of Mechanical Department and it was to be examined in the presence of both the parties. Again on 22.5.2008, appellant was directed to produce the vehicle before the above said officer for inspection. The vehicle was examined on 28.5.2008 and following report was submitted by a Board of Engineers on 7.7.2008 ;
"Subject:Appeal NO.291/2008,Hind Motors Vs Bhagwan Singh Please refer to your memo No.SC-CP-2008/4482 dated 12.5.2008 The car bearing Regn. No. CH-03-Z-0087 was subjected to test drive on 28.05.2008 and its performance was found to be satisfactory.
Further the performance of the vehicle was tested on 5.6.2008 using the diagnostic software supplied by the manufacturer. The tests revealed that all sub-systems including the wiring and all sensors were performing satisfactorily.
In the light of the above, it may be concluded that, as on date, the vehicle does not have any inherent manufacturing defect."
The report was received in this Commission on 14.7.2008 and vide order dated 24.7.2008, noting contents of above said report and without discussing anything further, appeal filed by the appellant was allowed and order passed by the Forum on 25.3.2008 was set aside.
6. The complainant preferred Revision Petition bearing No.3762 of 2008 before the National Consumer Disputes Redressal Commission, New Delhi, which was allowed vide order dated 5.10.2016. Order passed by this Commission on 24.7.2008 was set aside and the matter was remitted for fresh hearing on merits. At the time of hearing, it was noted by the Hon'ble National Commission that none of the parties were aware regarding whereabouts of the car. The Dealer was directed to file an affidavit disclosing whereabouts of the car. In the affidavit, it was stated that on deposit of an amount of Rs.1265/- on 21.10.2010 by the complainant, car was returned to him. However, the said defence taken by the appellant did not find favour with the National Commission.
7. We have heard Counsel for the Parties. It has been vehemently contended by the Counsel for appellant/OP No.1 that there was no manufacturing defect. Minor defects, which were brought to the notice of OP, were repaired and nothing was charged, the car being under warranty. It was further contended that by taking note of report of experts dated 7.7.2008, it cannot be said that there was any manufacturing defect in the car.
8. After hearing Counsel for the parties, we are not going to accept the argument advanced by the Counsel for the appellant. We have gone through the report submitted by the expert. Before examining the vehicle, purchase documents, literature relating to vehicle showing its peculiar parts, job cards more than 5, were not noticed at all. There is no mention of engine chamber leakage and other defects which were noticed and repaired as per job cards, as such report cannot be relied upon. As per admitted facts, car was purchased in the month of January,2007 and upto the month of August,2007, it was taken to the workshop of the appellant/OP No.1 between 6 to 7 times. Instead of enjoying the luxury of new vehicle, most of the time of complainant was spent in the workshop. Fed up with the performance of car purchased, so that his work may not suffer, he purchased another car of a different company. A new car is not supposed to go to the workshop again and again as has happened in the present case.
9. From the fact that the car was frequently taken to the workshop and remained there for many days, it can safely be said that there was some major defect in the car, if not manufacturing defect. In the case titled M/s Dominant Business Group Vs A.K.Bansal & Co. Appeal No.77 of 2016 decided on 28.6.2016, the complainant therein purchased one Mini Mobile Batching Machine. After its purchase, within a short span of time, it went under repair many a times. Noting that, it was observed as under by this Commission ;
"Machine was purchased on 20.11.2013. After about three months of purchase, it stopped functioning on 19.01.2014. Some parts of machine were replaced. However, thereafter, the machine did not function properly and started giving trouble after few days. Again on 10.02.2014, electric motor of the machine was changed/replaced and, thereafter, again on 03.03.2014, its electric motor and 'V' belt were changed by the appellant. The machine again failed to work properly, despite replacement of the OK parts. When nothing was done, consumer complaint was rightly filed by the respondent. It is not expected that after purchase of a new machine, it would collapse within few months, as has happened in this case. It appears that there was some manufacturing defect in the said machine and it has rightly been held so by the Forum, in the judgment under challenge. The product was under warranty, as such, it was open to the respondent to get his grievance redressed before the Consumer Fora. No case is made out for interference, on merits, in the order under challenge."
It was specifically stated that when a new article purchased, develops snag again and again after its purchase, it can be said that there was some defect in the product sold. Same is the position in this case.
10. To know that there was some serious major defects or not, the car could have been again sent to the expert(s). However, it is not possible, because as on today, the car is not available with the complainant and it is also so said by the appellant/Opposite Party No.1. It is an admitted fact that against order dated 25.03.2008 passed by the Forum, when appeal was filed, the car was available with appellant/OP No.1 on 1.5.2008. He was directed to produce that car for inspection before the concerned expert. Again direction was issued on 22.5.2008 to produce the car before the Head of Mechanical Department, Punjab Engineering College, Chandigarh. The car was produced by the appellant and it was examined and report was submitted. Taking note of the said report, appeal was allowed on 24.7.2008 by this Commission. There is nothing on record that till the time when such order was passed, car was returned to the complainant by appellant/OP No.1. Against order passed by this Commission, complainant went in revision which was allowed on 5.10.2016. When hearing arguments, it was noticed by the Hon'ble National Commission that whereabouts of the car were not disclosed by either of the party. As the car was last seen in possession of the appellant/OP No.1, appellant was asked to file an affidavit to disclose its whereabouts. Accordingly an affidavit was filed wherein an attempt was made to show that during pendency of the revision petition, letters were written to the complainant to take delivery of car. Thereafter, on 21.10.2010 complainant deposited an amount of Rs.1265/- and car was returned to him. Such plea taken did not find favour with the National Commission and it was rejected by observing as under, vide order dated 5.10.2016;
"At this juncture it is relevant to note that during the course of hearing on 26.03.2015 it had transpired that none of the parties before us were aware about the whereabouts of the vehicle in question. Since there were conflicting stands by the parties, we had directed the Dealer to file affidavit explaining the position about the custody of the vehicle with supporting documents regarding its stated delivery after service by Apex Motors on 17.10.2011. Pursuant to said directions an affidavit has been filed by the manager of the Dealer, wherein it is stated that the Complainant had taken the delivery of the vehicle in question after payment of Rs.1265/- on 21.10.2010 and thus, they are not in possession of the vehicle. However, the receipt annexed with the reply, does not show that the vehicle in question was actually delivered by the Dealer to the Complainant. It is a bare receipt acknowledging the receipt of the afore-noted amount against the pending payment. Therefore, we are not convinced that the vehicle in question was in fact returned to the Complainant after its service.
For the reasons aforesaid, we set aside the impugned order and remand the case back to the State Commission for deciding it afresh by a speaking order, in the light of the observations made above."
11. It was specifically stated that there is nothing on record to show that the vehicle was actually returned to the complainant. The above said finding has become final and we are going to accept the same. Otherwise also, when serious litigation was going on between the parties, and the matter was pending in the National Fora, it was bounden duty of the appellant to move an application before the National Commission seeking a direction to give delivery of the car. It was not done so. It was stated that some letters were written to the complainant to take delivery of the car, in response thereto an amount of Rs.1265/- is stated to be paid by the complainant on 21.10.2010. On the receipt of payment, signatures of the complainant did not exist. When relations of the parties were not good, if car was to be returned after the said alleged payment, which we disbelieve, it was duty of the appellant/OP No.1 to get delivery receipt signed from the complainant. Except bald statement made and self created evidence, there is nothing on record to show that after taking possession of the vehicle for repair in August,2008, it was ever returned to the complainant. In view of the above facts, no case is made out to make any interference in the order, under challenge.
12. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
13. Certified copies of this order, be sent to the parties, free of charge.
14. The file be consigned to Record Room, after completion.
Pronounced.
28.02.2017 [HON'BLE MR. JUSTICE Jasbir Singh] PRESIDENT [ DEV RAJ] MEMBER