National Consumer Disputes Redressal
Tata Motors vs Rajesh Tyagi & Anr. on 3 December, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1030 OF 2008 (From the order dated 19.11.2007 in First Appeal No. A-711/2004 of Delhi State Consumer Disputes Redressal Commission) Tata Motors Jivan Tara Building, Sansad Marg, New Delhi ... Petitioner Versus 1. Rajesh Tyagi R/o 41, Chitrakoot, East of Arjun Nagar, CBD, Delhi. 2. HIM Motors Show Room II At E-336, Nirman Vihar, Vikas Marg, Delhi Respondent(s)
BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Aditya Narain, Advocate Mr. Davesh Bhatia, Advocate Mr. Jasmeet Singh, Advocate Mr. Shashank Bhushan, Adv.
For the Respondent1 In person For the Respondent2 Ex-parte PRONOUNCED ON : 3RD DECEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.11.2007, passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 711/2004, Rajesh Tyagi versus Tata Motors Ltd. & Anr., vide which, appeal against the order dated 10.08.2004, passed by THE District Consumer Disputes Redressal Forum, was allowed and the order passed by the District Forum was set aside.
2. Brief facts of the case are that complainant/ respondent no. 1 Rajesh Tyagi purchased a Tata Indigo (GLX) car from the dealer respondent no. 2, M/s. Him Motors, Delhi for a sum of `4,45,811/-. He took an extended warranty for the vehicle against payment of `2,900/-. It has been alleged that after a few days of taking delivery of the car, the complainant noticed presence of water inside the car on the floor area under the front passenger seat. He took the car to the show-room to make a complaint, from where he was directed by respondent no. 2 to take the car to their workshop at Ghazipur.
He was told by the personnel at workshop after check-up that there was no inlet for water in the body-shell and the water might have come from the window pane. A few days later, water was again noticed at the same place inside the car, whereupon he took the car again to the workshop. He was told by respondent no. 2 that some outlet of air-conditioner was got twisted and for that reason water was pouring inside. Once again, the same problem was noticed in the first week of May, 2003; the car was again taken to the workshop and the service adviser told the complainant that the external outlet for water was blocked and the same had been rectified by him.
Again in the month of June 2003, the car was taken to the workshop at Ghazipur because water was inside the car.
This time, a job-card was issued and the complainant was asked to leave the car in the workshop. After some time, the car was delivered back saying that the defect was due to damaged seal and had been rectified. It has been stated in the complaint that the very next day, again a lot of water was located inside the car at the same place.
The car was again taken to the workshop and the concerned Engineer told the complainant that the dash board of the car was to be opened and the air-conditioner of the car was to be mended.
The Engineer told him while delivering the car back that there was some defect in the manufacturing of air-conditioner and the same had been rectified. The complainant, however, noticed that the seat covers and footmats had been totally destroyed at the workshop and the front left door seat was damaged and dents had been made at various places. The complainant then contacted the manufacturers M/s. TELCO, now the petitioner, Tata Motors and after their intervention, the car was again taken to the workshop at Ghazipur where he was told that there was defect in the manufacturing of the body-shell of the vehicle and could not be cured.
It was also assured that a failure report would be sent from the workshop to the company and the vehicle would be replaced after sanction of the company. However, when nothing was heard from the OPs, the complainant sent a claim letter / notice dated 18.07.2003 to the respondents requesting for refund of his money and compensation of ` 1 lakh for mental agony and harassment. The respondent no. 1 / petitioner rejected the claim of the complainant vide letter dated 1.09.2003. Thereafter, the complainant again took the car to the workshop for the first service on 22.11.2003. The car was returned to the complainant on 24.11.2003 but the defect still remained. The complainant then filed the consumer complaint in question, seeking refund of ` 5,24,571/- along with interest @18% p.a. and also ` 1 lakh as compensation for mental harassment. The said complaint was, however, dismissed by the District Forum vide order dated 10.08.2004, saying that the replacement or refund could not be given as the manufacturing defect in the vehicle had not been proved. However, in appeal filed before the State Commission, the complaint was allowed, directing the refund of cost of the vehicle, i.e., `5,24,471/- and to pay `50,000/- as compensation for mental agony and harassment. It is against this order that the present revision petition has been made.
3. At the time of hearing before us, the learned counsel for the petitioner / manufacturer M/s. Tata Motors vehemently argued that there was no evidence of any manufacturing defect in the said vehicle and hence, in the absence of a manufacturing defect, the petitioner was not liable to pay any compensation to the complainant.
The learned counsel cited various judgements, made by the Honble Supreme Court and the National Commission in favour of his arguments that the petitioners could be made liable only, if there was evidence of manufacturing defect. As per the version of the learned counsel, if a vehicle suffers from manufacturing defect, it stops working and it is not possible to rectify the said defect. Referring to the contents of the complaint in question, the learned counsel pointed out that the complainant had not given any specific dates when the vehicle was taken to the workshop for repairs. He specifically referred to the averments made in paragraph 3.7 to para 3.11 in the complaint in this regard. The District Forum had rightly observed that there were no documents on record to substantiate the version of the complainant that he visited the workshop of OPs before 21.06.2003. Learned counsel further stated that the main issue involved in the complaint relates to the presence of water inside the vehicle. However, even if water was found inside the vehicle, it could not be stated to be due to any manufacturing defect. According to the petitioners, the problem of water dripping inside the vehicle was complained for the first time on 21.06.2003 and it was rectified to the satisfaction of the complainant. The same problem was complained of 5 months later, i.e., on 22.11.2003 and it was again attended to and rectified free of cost. The said complaint was never made post 22.11.2003, which shows that there was no manufacturing defect. Further, in accordance with the requirements of section 13(1)(b) and 13(1)(c) of the Consumer Protection Act, 1986, an expert opinion should be called for in such cases and it is mandatory requirement, but in the present case, no such expert opinion has been called. In the complaint also, there is no allegation about the vehicle having any manufacturing defect. Further, the onus of proving that the manufacturing defect was there lies on the complainant. The National Commission has also been taking consistent view that the refund of price of vehicle can be given only if the existence of manufacturing defect is proved. The order made by the National Commission in Sushila Automobiles Pvt. Ltd. versus Dr. B.N. Prasad [MANU/CF/0076/2010] makes it very clear that the complainant has to prove by cogent, credible and adequate evidence, supported by the opinion of an expert that the vehicle suffered from inherent manufacturing defect.
In the case of Classic Automobiles versus Lila Nand Mishra & Anr. [I (2010) CPJ 235 (NC)], it has been stated that the onus to prove the manufacturing defect was on the complainant and further, it was necessary to obtain expert opinion before saying that there was manufacturing defect. The learned counsel further argued that in the present case, no compensation was required to be paid to the consumer under section 14(1)(d) of the Consumer Protection Act, 1986 as there had been no negligence by the Opposite Parties.
4. The respondent no. 1, who appeared in person, stated that the order passed by the State Commission had not been challenged by the dealer respondent no. 2, meaning thereby that they had accepted the said order. He argued that the vehicle was taken to the workshop on a number of occasions, but the job-card was not issued on many of these occasions. However, whenever the job cards were issued, they did mention about the existence of defects in the vehicle. The complainant was, therefore, asking for replacement of the vehicle and not refund of his money. He referred to a letter sent on 26.07.2003 by the petitioner in response to his notice dated 18.07.2003, wherein the petitioner has mentioned that they had called for a report in the matter. Later on, they have not made any mention about this report anywhere. Further, in their reply dated 1.09.2003 sent to the complainant in response to the legal notice dated 18.07.2003, they had admitted about the defects in the vehicle and the action taken by them in removing those defects. It has been stated in the said reply as follows:-
8. In reply to para no. 8 of the Notice under Reply, the car was brought at the workshop of Notice No. 1 with complaint of water pouring inside and the reason behind was that, the outlet pipe of the A/c cooling was found twisted, which was rectified accordingly.
10. In reply to para no. 10, 11 and 12 of the Notice under Reply, it is submitted that the car was brought to the workshop of Noticee No. 1 with the complaint of water pouring. The car was thoroughly checked and found that on vehicle movement water comes out from Dashboard. It was suspected that water was coming out from A/c cooling coil, hence, the whole of the dashboard was removed and the outlet of cooling was also checked. Rest of contents are denied for want of knowledge.
11. In reply to para no. 13 of the Notice under Reply, it is submitted that you complained for the seat covers and running board as being damaged, for which Noticee No. 1 asked you to get it repaired. Even at the time of delivery, no such damage was noticed. The running board was repaired and painted at the same time.
5. The complainant/respondent no. 1 stated that it was clear from the above quoted version of the petitioner that there was defect in the vehicle and the dealer had taken various measures to remove the defects. The complainant further pointed out that in his written submissions during proceedings in this case filed on 4.12.2012, he had mentioned that the National Commission had directed to refund the cost of the car along with interest @18% in Captan Singh versus B.K. Jain & Ors. [1986 to 2006 Consumer 11276 (NC)], for the failure of the manufacturer to rectify the defect within the warranty period. In this case also, the complaint was regarding the pouring of rain water inside the car. The complainant mentioned that the defects in the car were quite apparent from the reports of the engineers of the respondents.
6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The main thrust of the line of argument taken by the petitioners revolves around the fact that there was no evidence of any manufacturing defect in the vehicle. The onus to prove the manufacturing defect is on the complainant and the same should be proved by expert evidence, in the absence of which no liability can be attributed to the petitioner to compensate the complainant. On the other hand, the State Commission in their order have relied upon the definition of defect as contained in the Consumer Protection Act, 1986 and stated that a complainant is liable to be compensated, if there is any fault, imperfection or shortcoming in the quality, quantity, potency, etc. of the vehicle. The State Commission observed in their order as follows:-
5. In our view, it is misconceived notion that any vehicle for that purpose any goods can be ordered to be replaced or the cost can be ordered to be refunded only if they suffer from manufacturing defect. There is no such concept of goods suffering from manufacturing defect enshrined by the provision of Consumer Protection Act. Consumer Protection Act only defines the word defect by way of Section 2(1) (f) of the Act which is to the following effect:-
Defect 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.
6. In such cases we have taken a sustained view that whenever a consumer goes for a brand new goods like the vehicle his minimum expectation is that he would not encounter or face any inconvenience or hardship for few months or a year and if he had to take the vehicle time and again to the workshop for removing one defect or the other, he suffers immensely in terms of loss of time, loss of business, physical discomfort and emotional sufferings having not reaped the fruits of paying heavy amount for purchasing a new vehicle.
7. We have also taken a view that onus shifts to the manufacturer to show that the vehicle does not suffer from manufacturing defect once complainant has proved and discharged the initial onus that the vehicle was defective vehicle on the basis of large number of job cards showing that vehicle was taken on many occasion for removing one defect or the other. Complainant has already suffered immensely and is a wronged person by having been sold a defective goods and to expect him to again incur expenses by obtaining expert opinion to show the vehicle suffers from manufacturing defect will be too much. Large number of visits to the workshop from the day of purchase of vehicle for removing some or other defects is sufficient to draw the inference that the vehicle is a defective vehicle. The circumstance of the vehicle having been taken for removal of defects within or after the period of warranty leaves no manner of doubt that the goods sold to the consumer is not only defective but also suffers from manufacturing defect.
If the defect continues for months together and years together and erupts time and again no other inference can be drawn than that the vehicle suffers from manufacturing defect as defects which are not of manufacturing nature can be rectified or removed without their recurrence or without giving any further inconvenience to the consumer.
7. The State Commission have further observed in their order:-
..Bare perusal of the definition of word defect shows that any kind of fault or 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.
9. Thus in our view whenever a manufacturer of the vehicle offers to sell the brand new vehicle to the consumer there is an implied contract as to the claim of the manufacturer that the vehicle being sold by it does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.
10. The audacity and impunity on the part of the respondent to rub salt on the wounds of the complainant that he should prove that he had been visiting time and again is demonstrated from their reply sent by both respondent as well as reply of notice and other notice sent by the complainant to the respondent No.1. For such type of manufacturers and service providers the Supreme court has in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 Supreme Court Cases 65 come down heavily and called upon the Consumer Forum and Commissions established under the Consumer Protection Act, 1986 to not only compensate the consumer as to the actual loss suffered by him but also to compensate him as to the mental agony, harassment, emotional suffering, physical discomfort, loss of business, loss of time by taking vehicle time and again to the workshop.
8. From the entire factual matrix of the case, it is very clearly brought out that the vehicle in question is a defective vehicle when judged from the definition of defect as contained in section 2(1)(f) of the Consumer Protection Act, 1986. In reply to the legal notice dated 18.07.2003, sent by the petitioner to the complainant, there is a non-ambiguous admission on the part of the OPs that the allegation levelled in the complaint about the defect of water accumulation inside the vehicle are true. The basic question is whether this kind of situation about the vehicle as admitted in the reply to the show-cause notice can be categorised as manufacturing defect or not. In the strict technical terminology, this kind of situation may not lead to the conclusion that there is a manufacturing defect; but still, it goes without saying that whatever defect has been observed in the vehicle for which the complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper perspective. It is the bound duty of both the manufacturer and the dealer to attend to the said defect and make it a defect-free vehicle and if they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer. We, therefore, agree with the conclusion arrived at by the State Commission that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.
9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Honble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not.
10. Based on the discussion above, we find that it shall be in the fitness of things if the petitioner and respondent no. 2 dealer who has chosen not to put appearance before this Commission, jointly make an endeavour to remove the defects in the vehicle and give a clear-cut certificate signed by a senior officer of the manufacturer, not below the rank of a General Manager, declaring in categorical terms that the vehicle is free from any defects. We, therefore, order accordingly and manufacturer and the dealer are permitted to carry out the necessary repairs in the vehicle, make it defect-free and hand it over to the consumer along with the certificate as mentioned above within a period of three months from today.
11. List on 21.03.2014 for compliance.
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(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/