National Consumer Disputes Redressal
M/S. Tata Engg. & Locomotive Co. Ltd. & ... vs Niravbhai K Purohit on 17 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1159 OF 2010 (Against the Order dated 05/02/2010 in Appeal No. 1081/2008 of the State Commission Gujarat) 1. M/S. TATA ENGG. & LOCOMOTIVE CO. LTD. & ANR. Now Tata Motors Ltd. Managing Direstor/Regional Manager SCO No. 170-172, 1st Floor, Sector - 7-C Chandigarh 2. JAY GANESH AUTO CENTRE Opp. Forest Garden, Rajkot Road Junagarh ...........Petitioner(s) Versus 1. NIRAVBHAI K PUROHIT Ranpur, Tal. Bhesan, At - Panch Hatdi Chowk Junagarh ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Petitioner : Mr. Aditya Narain, Advocate
Mr. Varun Arora, Advocate For the Respondent : Mr. R. M. Vithlani, Advocate
Dated : 17 Jul 2017 ORDER 1. This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 5.2.2010 passed in First Appeal No. 1081 of 2008 by Gujarat State Consumer Disputes Redressal Commission (in short, 'the State Commission') whereby the State Commission dismissed the appeal.
2. The relevant facts for the disposal of the revision petition are that the Complainant, Mr. Niravbhai K. Purohit, purchased Tata Indigo LX II motor car on 23.1.2007 from OP 1/M/s Tata Motors Ltd. It was alleged that soon after purchase and after run for the distance of 201 kms., there was a problem of fuel meter, noise in door of the car. The car was sent to OP 2-Jay Ganesh Auto Center for repair on 27.1.2007. Again, there was problem of gear shifting and reverse light. The car was sent on 31.3.2007 to OP 2. After repair, car was delivered to 07.3.2007 and it was stated to OP 2 about the problem in fuel meter and odometer (speed), which had to be changed along with fuel tank unit. On 19.3.2007, the complainant was travelling to Vadodara by his car. The car stopped in midway, which was taken to service center wherein the repair of the timing belt of motor car and injection nozzle were changed. On 18.4.2007, the engine oil filter, fuel filter, ailment etc. were changed but there was no total improvement.
3. Thus, alleging manufacturing defects, complainant filed a complaint before the District Consumer Dispute Redressal Commission, Junagadh (herein after referred as District Forum). The complaint was resisted by the OP before the District Forum by filing written version and denied the allegations.
4. The District Forum vide its order dated 8.8.2008 allowed the complaint by relying upon expert opinion and directed OPs to pay the cost of the car i.e. Rs. 5,12,380/- with interest @8% p.a. alongwith Rs.10,000/- towards mental agony and costs of Rs.2000/-. The District Forum also awarded Rs.4028/- towards repairing expenses.
5. Aggrieved by the order of District Forum, the OPs preferred first appeal before Gujarat State Consumer Dispute Redressal Commission, Ahmadabad (herein after referred as 'the State Commission'). The State commission dismissed the appeal on the ground that the defect was not ordinary because the problem was persisting despite service and replacement of vital parts. The State Commission also observed that within four days from the date of purchase, the car was sent for repairs and within four months, the car was repaired 7 to 8 times.
6. Heard learned counsel for the parties. Learned counsel for the petitioner, Mr. Aditya Narain vehemently argued that the District Forum and the State Commission have ignored the warranty clause. There were no inherent mechanical defects in the car. Learned counsel further submitted that the problems alleged by the complainant were duly carried out by the dealer. The defects cannot be termed as manufacturing defects. The car was duly attended at the workshop by the dealer to the fullest satisfaction of the complainant. Due to negligence of complainant himself by using adulterated fuel, the vehicle developed alleged defects. Regarding the manufacturing defects, learned counsel relied upon the judgments in Maruti Udyog Limited vs. Hasmukh Lakshmichand & Anr. III (2009) CPJ 229 (NC) and Classic Automobiles vs. Lila Nand Mishra & Anr. I (2010) CPJ 235 (NC). The counsel further submitted that the fora below have failed to follow up the legal mandatory procedure of referring the vehicle to independent expert agency in terms of Section 13(1) (c) of the Consumer Protection Act, 1986. Thus, the fora below has clearly overlooked and ignored the terms of the warranty. The counsel submitted that the affidavit and cross examination of Mr. Deepak Tiwari was not considered and it was wrongly interpreted, who was an engineer (B.E. Mechanical). The complainant abandoned the vehicle and did not take the delivery after repairs. The vehicle was extensively used, had covered 17301 kms. between 23.1.2007 to 14.5.2007, which means the vehicle ran on an average 156 kms per day. Therefore, the manufacturing defect would be a defect without which the vehicle cannot function.
7. In this regard, the learned counsel relied upon Classic Automobiles vs. Lila Nand Mishra & Anr. I (2010) CPJ 235 (NC). Also, the counsel relied upon the judgment of Hon'ble Supreme Court in the case of Telco Ltd. vs. Gajanan Mandrekar AIR 1997 SC 2774 wherein it has been held that extensive usage is one of the relevant factors to be considered in the case of a consumer dispute for grant of damages and further that if the vehicle in dispute had been suffering from any kind of defect then the same could not have been plied upto such an extensive mileage of approx. 190 kms/day. Therefore, the lower fora have failed to find out the negligence against the petitioner. Hence, in absence of any evidence of negligence, there was no question of grant of compensation arises.
8. The rival arguments advanced by learned counsel for the complainant are that the car started problems after two days of purchase. It has visited the workshop of the dealer for 7-8 times within a span of six months. On 19.3.2007, the car had major problems. It was stopped on the highway while going on a tour out of Gujarat. During second service also, car had many problems and regarding necessary repairs, the complainant informed OP 2 that it had problem of gear shifting, A/c air flow problem, clutch chattering problem, steering wheel vibration problem, tyre balancing and alignment problem, as mentioned in the complaint (at page 162). Due to such huge repairs, the complainant was not willing to take that car from the custody of OP No.2. Hence, since 14.5.2007, the car was in the custody of OP 2. The complainant abandoned the case because of having manufacturing defects since beginning. Hence, he sought the replacement of vehicle with brand new one.
9. I have perused the warranty clause 2, it is stated that :
"2. Our obligation under this warranty shall be limited to repairing or replacing, free of charge, such parts of the car which, in our opinion, are defective, on the car being brought to us or to our dealers within the period. The parts so repaired or replaced shall also be warranted for quality and workmanship but such warranty shall be co-terminus with this original warranty."
With respect to abandonment, learned counsel for the OP submitted that it amounts to negligence of complainant because the complainant cannot judge on his own case and by abandoning the vehicle and not taking the delivery after the repairs, is the guilty of negligence. He relied upon the judgment in the case of Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractors Ltd. through Manager vs. Ramdas & Ors.. In that case, this Commission took a stern view on abandonment "10. In our considered view, as an ordinary practice such abandonment of a new vehicle soon after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned, is not prudent conduct on the part of a consumer, even if the consumer has justified grounds for serious dissatisfaction with the performance of the new vehicle or even after its repairs. In the best of circumstances, such abandonment is entirely to the disadvantage of the consumer for the vehicle can only deteriorate if left in the so-called care of an indifferent dealer who too may have his own reasons to feel aggrieved that his repairs bills and garage charges remain unpaid."
As per the order dated 26.3.2010, the petitioner undertook to repair of the vehicle, made the vehicle roadworthy and filed a certificate of roadworthiness and fitness of an independent automobile engineer and it was completely repaired and free from any defect at the cost of the petitioner itself. There was extensive usage of the vehicle. It is transpired from the speedometer that from 23.1.2007 to 14.5.2007, the vehicle had covered 7301 kms. per day. In this context, this Commission in the case of Classic Automobile vs. Lila Nand Mishra I (2010) CPJ 235 (NC) held that "manufacturing defect would be a defect without which a vehicle cannot function." Also, the Hon'ble Supreme Court in the case of Telco Ltd. vs. Gajanan Mandrekar AIR 1997 SC 2774 observed that "extensive usage is one of the relevant factors to be considered in the case of a consumer dispute for grant of damages and further that the if the vehicle in dispute had been suffering from any kind of defect then the same could not have been plied upto such an extensive mileage of approx. 190 kms/day. Also, this Commission in its recent judgment in the case of Hyundai Motor India Limited vs. Surbhi Gupta & Ors., RP No. 2854 of 2014, was of the view that had there been some inherent manufacturing defect in the vehicle, it would not have been possible for the vehicle to run for about 48,689 kms. for over a period of more than three and a half years.
10. This Commission on 26.3.2010 directed for the inspection of the car in question by the registered surveyor. Accordingly, OP wrote a letter dated 14.7.2010 to the complainant stating as follows:-
"Sub: Inspection of your vehicle number GJ11S 2800 Dear Mr. Nirav Bhai Purohit, We hereby inform you that as per the instruction of Hon'ble National Commission we have arranged for the inspection of your car by registered Surveyor Mr. M D Upadhyaya on 15th July 2010 at 3.00 pm. At our Jai Ganesh Auto Centre Workshop, Junagadh."
11. The complainant expressed his inability to attend the same. Therefore, the OP has made another attempt and re-scheduled the date of inspection on 17.6.2010 at the same time and at the same place for the joint inspection of the vehicle by Mr. M D Upadhyaya. Even though, the complainant was not present on the date of inspection. The vehicle was inspected by the Surveyor on 17.7.2010 in presence of the Manager, Customer Support of Tata Motors, Ahmedabad; Manager, Jai Ganesh, Tata Dealer at Rajkot at Junagadh and submitted the inspection report.
12. It is pertinent from the report that the vehicle had run 17597 kms. There was no oil leak from the engine, gear box and rear axel. No damage to the body paint. The chasis frame was found to be 'OK' and finally, he submitted the report :
"after inspection of the vehicle (lying since 24 month at Jai Ganesh Junagadh) and its components, I observed that there is no defect noticed during test drive of the said vehicle which may effect the performance or running of the vehicle. As per my experience of more than 30 years in Automobile field, I do not find any defect which may be attributed as manufacturing defect in the vehicle. I h/w state, Opine and certify that the vehicle is absolutely in road worthy condition and there is no defect found existing, in the Vehicle during course of my inspection at this juncture.
I state that the observation given above are solely based on the Service Record, Complains, Job Cards etc. made available to me from your end and physical Inspection & Test Drive of the said vehicle and nothing has been suppressed and/or concealed with."
13. On the basis of entirety and foregoing discussion, I am of the view that repairs conducted by the OP were not manufacturing defects. The defects were cured whenever the complainant approached the dealer during the warranty period. The inspection report also did not show any iota of evidence that there was manufacturing defect and needs any replacement of the instant vehicle. Hence, relying upon the precedents of Hon'ble Supreme Court and this Commission, impugned order is hereby set aside and consequently, dismiss the complaint.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER