State Consumer Disputes Redressal Commission
Bishamber Nath Sikka vs Tata Motors Ltd. on 1 April, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 01-04-2008 (1) Appeal No. FA-453/2006 (Arising from the order dated 04-04-2006 passed by District Forum (East), Saini Enclave, Delhi in complaint case No. 1018/2005) Bishamber Nath Sikka -Appellant (Prop. of M/s BAN Sons) Through D-3, Connaught Place, Mr. Rajesh Tyagi, New Delhi-110001. Advocate. Versus 1. Tata Motors Ltd. -Respondent No.1 Regd. Of. 305, 3rd Floor, Tower B, Through Signatures Towers, Mr. Ajay Saini, South City I, N.H.-8, Advocate. Gurgaon-122001. 2. Him Motors Pvt. Ltd, -Respondent No.2. Plot 338, Factory Indl. Estate (FIE), Through Plot 24, FIE, Patparganj, Mr. Vijay Wadhwa, Delhi-110092. Advocate. (2) Appeal No. FA-554/2006 (Arising from the order dated 04-04-2006 passed by District Forum (East), Saini Enclave, Delhi in complaint case No. 1018/2005) Tata Motors Ltd. -Appellant Regd. Of. 305, 3rd Floor, Tower B, Through Signatures Towers, Mr. Ajay Saini, South City I, N.H.-8, Advocate. Gurgaon-122001. Versus 1. Bishamber Nath Sikka -Respondent No.1 (Prop. of M/s BAN Sons) Through D-3, Connaught Place, Mr. Rajesh Tyagi, New Delhi-110001. Advocate. 2. Him Motors Pvt. Ltd, -Respondent No.2. Plot 338, Factory Indl. Estate (FIE), Through Plot 24, FIE, Patparganj, Mr. Vijay Wadhwa, Delhi-110092. Advocate. CORAM: Mr. 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 (ORAL) Aforesaid two appeals arise from the order dated 4th April 2006 passed by the District Forum whereby he appellant Tata-Motors , manufacturer of the car and respondent No.2 Him Motors Pvt. Ltd. i.e. the dealer who sold the car to respondent No.1 have been jointly and severally held guilty for selling a defective car and given the following directions :-
(i) Deliver the car after repair (particularly the defect of overheating) free of charge. However, it is clarified that if battery needs replacement, it shall be done at the cost of complainant.
(ii) To issue a warranty of one year free of cost in respect of repair of overheating valid from the date of delivery of vehicle.
(iii) OP will not charge any amount on account of parking charges from the complainant.
(iv) Both OPs will pay a sum of Rs. 2,000/- as symbolical compensation to the complainant.
2. Appellant Tata Motors is aggrieved of the order itself whereas appellant Bishamber Nath Sikka i.e. the complainant is dissatisfied with the order as neither any compensation has been provided nor any order for refund of the cost of the car has been passed.
3. For the sake of convenience we will refer appellant Bishamber Nath Sikka as complainant and Tata Motors as OP No.1 and Him Motors as OP No.2 as arraigned in the original complaint.
4. Allegations of the complainant before the District Forum, in brief, were that he purchased a new TATA Indigo car No. DL.4C-1341 from OP No.2 on 11-03-2003 which was manufactured by OP No.1. The car suffered damage from the malfunctioning of the latch/lock of its hood/bonnet. Car was finally returned on 29-06-2005.
After repair on 29-06-2005, the engine of car was quite rough and erratic. Car stopped on the way back home. OP No.2 sent its mobile unit. The car developed the problem of over heating on 29-08-2005. It was taken to OP No.2 who repaired it as paid job. The car again developed the problem of over heating on 17-09-2005. This created dispute between the parties forcing the complainant to file the present complaint. Correspondence ensured between the parties. The basic grievance of the complainant is highlighted as under:-
Overheating resulted in frequent loss/drain of engine coolant at short distance/interval. Defect was fresh and new arising from mischief and mishandling of the car by OP No.2 in its custody.
5. OP No.2 Tata Motors took the legal objection that the vehicle was used for commercial purpose and hence complainant is not the consumer. But on merits it pleaded that car does not suffer from any manufacturing defects and denied the allegations that car was made defective by mishandling of vehicle at the place of OP NO.1 Tata Motors.
Similar stand was taken by OP No.2 Him Motors.
6. At the out set it may be mentioned that the vehicle is lying with OP No.2-Him Motors for the last three years and has not been used by the complainant.
7. We have perused the impugned order and find that job card Ex. RW2/1/B vide which the defect of overheating was detected and rectified and was also repaired. Ex.
RW2/1/C is the invoice of payment of repairs.
OP No.2 charged Rs. 386.06 for this repair. During the repair OP No.2 replaced assembly lever hood release which should have been replaced during repair on 29-06-2005. However the defect of overheating re-erupted within 17 days and the average mileage of the car was about 50 km per day. According to the District Forum the recurrence of such defect of overheating suggests imperfection of work-manship of OP No.1. Recurrence of such defect raises inference that vehicle was mishandled by OP No.2 while in its custody, though there was no expert evidence or opinion regarding mishandling of the vehicle.
8. Since the complainant has got his vehicle repaired from one of the authorised workshops of OP No.1 recurrence of defect of overheating within 15 days of its repair shows that vehicle was not completely checked as to the overheating at the time of repair and it was casually repaired.
9. It is common knowledge that consumer always prefers to go to an authorized workshop by making considerable payment towards repairs so as to avoid recurrence of same defect or some other defects. There was no explanation from the officers of OP No.2 as to the damaged water pump, condenser, fan head gasket of the heating system of the vehicle. District Forum has adversely commended upon such conduct of the officers of OP No.2 who instead of satisfying the complainant threatened him to pay sum of Rs. 100/- per day as parking charges vide its letter dated 04-10-2005.
10. On behalf of OP No.1 and 2 the learned counsel contended that the complainant refused to take delivery of the car after repair particularly when the defect of overheating was done free of charge and was also ready to issue warranty of one year from the repair of overheating and therefore caused inconvenience to them by parking the car for such a long period without any charges.
11. It is misconceived notion that unless and until goods or the vehicle suffer from any manufacturing defect, though the onus is always upon on the manufacturer to prove that it does not suffer from any manufacturing defect, the goods or the vehicle cannot be declared as defective. The quality, standard, purity and potency of every goods has to be tested on the anvil of word defect as provide by section 2(1)(g) of the Consumer Protection Act, 1986. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained 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, amounts to defect.
12. The inference of vehicle being defective can be drawn from various job cards.
Whenever a consumer goes for a brand new vehicle instead of purchasing a second and third hand vehicle he does so to avoid any hardship or inconvenience that a second hand or third hand vehicle gives and the minimum expectation of the consumer who goes for the branch new vehicle is that it will not give trouble for two-three years or so and if he is taking the vehicle every two or three days or once or twice a month he does so at the cost of his precious time or business loss or financial loss etc, and at the cost of emotional sufferings also.
13. In the instant case defect of overheating is of such a nature that inspite of repairing it on one or two occasions the defect could not be removed and the complainant was forced to file the instant complaint before the District Forum seeking redressal of his grievance. However, the vehicle was purchased on 11-03-2003 and was taken for repairs on 03-06-2005 when it suffered damage from mal functioning of the latch/lock of its hood/bonnet which suddenly opened and damaged the windscreen as well as the bonnet of the car.
14. OP took considerably long time for repairing the defects of the car and the car was finally returned on 29th June, 2005 and on the same day the car stopped on the way back home and OP No.2 sent Mobile Unit as it was found that it developed problem of overheating. After repairing the car defect again reappeared on 29-08-2005 and was taken to OP No.2.
15. The concept of warranty is that a consumer may be charged for the repairs of any defect by the dealer if these are repaired after the expiry of warranty.
But in no way the warranty period can convert a defective vehicle into a perfect vehicle. If the defect continues after the warranty period which had erupted before the warranty period the inference could be drawn that it is suffering from inherent manufacturing defect and the vehicle has to be declared as a defective vehicle.
16. Since the vehicle is lying with OP N.2 for the last three years, it must have reduced to junk so far as the complainant is concerned. In such type of cases we have taken a view that the endeavour of the District Forum should be to end the dispute of the parties once for all by making the order of refund of the cost of the vehicle which is held to be defective or by awarding reasonable compensation for the mental agony, physical discomfort and other sufferings suffered by the consumer.
Therefore the order for repairing some defects or replacing the vehicle or issuing warranty is such an order which is difficult to be executed and monitored as the possibility of the new vehicle being not up to he satisfaction or the removal of defects being not upto the satisfaction of the consumer cannot be ruled out and such orders have given rise to second or third bout of litigation between the parties.
17. Taking over all view of the matter and the fact that the complainant had used this vehicle without any demur for more than two years when the aforesaid defect appeared , we deem that lump sum compensation as to the cost of the vehicle and also for other sufferings amounting to Rs. 4 lacs shall meet the ends of justice.
This order shall be operative against OP No.2 only. Complainant shall complete all the formalities for transferring the vehicle in the name of OP No. 2, the manufacturer.
18. Both the appeals are disposed of in aforesaid terms.
19. Aforesaid payment shall be made within one month from the date of receipt of this order.
20. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
21. Announced on 1st April, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj