State Consumer Disputes Redressal Commission
Balwinder Singh vs Tata Motors on 11 May, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.909 of 2012
Date of institution: 09.07.2012.
Date of Decision: 11.05.2015.
Balwinder Singh S/o Prem Chand R/o 25, Dashmesh Avenue,
Jalandhar.
.....Appellant/Complainant.
Versus
1. Tata Motors Limited, 1/9-B, Jindal House, Asaf Ali Road,
New Delhi - 110 002.
2. Cargo Motors Pvt. Ltd., Cargo House, G.T.Road, Near
BSF Chowk, Jalandhar.
.....Respondents/Opposite parties.
First Appeal against order dated
30.05.2012 of District Consumer
Disputes Redressal Forum,
Jalandhar.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member.
Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Munish Goel, Advocate For respondent No.1 : Sh.P.K.Kukreja, Advocate For respondent No.2 : Sh.Avtar Manmohan Jit Singh, Advocate First Appeal No.909 of 2012 2 VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellant (the complainant in the complaint) against the respondents of this appeal (opposite parties in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 30.05.2012 of the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called the 'District Forum') in Consumer Complaint No.108 of 16.02.2011, accepting the complaint of the complainant and opposite parties were directed either to repair the turbo of the engine and in case it could not be repaired satisfactorily, then to replace it free of costs, besides Rs.1000/- was also awarded towards litigation expenses and compensation.
2. The brief facts of the case of the complainant are that Sh.Balwinder Singh complainant filed the complaint under the Act against the OPs on the averments that on 09.01.2009, the complainant purchased a passenger car of Model Indica Vista from the opposite party No.2 (Cargo Motor Pvt. Ltd., Jalandhar) by making the necessary payment and the same was manufactured by OP No.1(Tata Motor Ltd., New Delhi). The said car carried a warranty of one year given by OP No.1. Besides that, the OP No.2 entered into an agreement with the First Appeal No.909 of 2012 3 complainant under which the said warranty was extended for another two years as per the warranty terms and conditions. The OP No.2 charged a sum of Rs.3625/- from him to provide the said extended warranty. It was alleged that the complainant came to know on 12.01.2009 that the model of the said car was of 2008, whereas the OP No.2 had specifically stated at the time of sale, that the model of the car was 2009. When confronted with the said bungling, the OPs told the complainant to pay a sum of Rs.2500/- and model of the car would be shown to be of 2009 in the registration certificate. The complainant paid an additional amount of Rs.2500/- to the OPs on 12.01.2009 for showing 2009 model of the car. The said car was registered bearing registration number PB-08-BJ-0178 with the Registering Authority, DTO, Jalandhar. The said car was got insured with the New India Insurance Company Ltd. The said insurance was cashless policy which entitled the complainant to get necessary repairs of the said car from OP No.1 without paying anything for such repairs. It was further pleaded that while driving, the said vehicle met with an accident, which caused minor damage to the car. The complainant took his damaged car to OP No.2 for necessary repairs. After repairing the same, the car was handed over to the complainant on 18.01.2010 in late hours. It was alleged that despite having the cashless insurance First Appeal No.909 of 2012 4 policy, the OP No.2 charged Rs.4200/- from the complainant. On 20.01.2010 when the complainant started driving his car, he found that the engine of the car was not picking up properly. Moreover, there was a problem while shifting of gears of the car. The complainant immediately took his car to the OP No.2, who carried inspection of the said car and made a job sheet. OP No.2 told the complainant that the turbo engine of the car developed a fault due to the accident and in case, the complainant was ready to pay a sum of Rs.17,000/-, only then the car would be repaired. The complainant got annoyed therewith and told OP No.2 that how can the engine of the car got damaged in the earlier accident, when there was no damage either to the radiator or to the fan assembly. The engine unit of the car was located behind the radiator and in case of accident, the radiator gets damage firstly and only after that, the engine receives any damage. He further added that his car was under warranty. It was alleged that the OP No.2 was adamant on its stand that the necessary repairs would be carried out only after the complainant deposited Rs.17,000/- with the OP No.2. Earlier also, the complainant faced unprofessional and deficient behaviour of OP No.2 on two occasions, when he took his car to OP No.2 for free service on 23.03.2009, when horn of the car was out of order. OP No.2 did not provide a new horn to the complainant since it First Appeal No.909 of 2012 5 was not in its stock. On 04.11.2009, the fog lights of the car went out of order and the car was taken to OP No.2, but the same were not changed because the fog lights were not available. It was further pleaded that he purchased the new spare parts from the market by making the necessary payment out of his own pocket, whereas, as per the warranty extended by OP No.2, the OPs were bound to provide those spare parts free of cost to the complainant. He spent Rs.1150/- on horn and Rs.1900/- for the fog lights from his own pocket despite warranty. The refusal of OP No.2 to put the engine and gear box assembly in the car in a proper working mode despite the warranty period amounted to deficiency in service on the part of OPs. Hence, he filed the complaint seeking direction to the OPs to refund the amount of Rs.3,050/- being the price of new spare parts purchased on 23.3.2009 and 04.11.2009; to rectify the defects of the car as detected and mentioned in the job sheet dated 20.01.2010 without charging any amount, since those defects occurred within the warranty period; to pay Rs.50,000/- towards compensation for mental tension and harassment; to pay Rs.6,500/- as litigation expenses.
3. The complaint was contested by OP No.1, who filed the written reply before the District Forum. It was pleaded that OP No.1 being a manufacturer of the vehicle gives warranty for a specified period on the stipulated terms and conditions to First Appeal No.909 of 2012 6 the consumer and the consumer accepts such warranty. Such warranty was pure and simply a non-statutory contract and both the parties to thereto were bound by the terms and conditions laid down in the warranty policy document. There are many parts in a vehicle and it is not possible for the opposite party to manufacture all of them. Therefore, some parts/components are procured from other sources in accordance with technical requirements and were fitted in the vehicle manufactured by OP, e.g. tyres batteries, etc. It was pleaded that some of the parts/components were out-sourced in such a situation, since the OP was not manufacturer of those items, obviously, the OP cannot give warranty for those parts to the consumers. In such cases, the manufacturer of such parts/components agrees that the buyer is entitled to exercise the rights of opposite party No.1 under the terms of warranty of those parties for such parts/components from the said manufacturer. It was pleaded that the complaint was not maintainable for the simple reason that he had given an undertaking to OP No.2 on 30.08.2010, whereby the complainant has written own satisfaction note that 'as the turbo has been replaced now he undertakes to withdraw his complaint from the Consumer Court'. It was further pleaded that as per the opinion, the vehicle in question was reported at the workshop of OP No.2 at 37451 kms in a badly damaged First Appeal No.909 of 2012 7 condition from front side. The complainant had concealed the circumstances and manner in which the vehicle had met with accident and when the accident took place and these facts can only be in the knowledge of the complainant alone and the vehicle was also in his possession and not in the possession of OPs. As the vehicle in question was brought at the workshop of OP No.2 for accidental repair, under these circumstances the warranty could not be claimed as a matter of right. It was further pleaded that the vehicle in question had covered a distance of 42000 kms, within a period of 1/4 years. The vehicle in question was being used for commercial purposes as such the complainant was not a consumer. The complainant had not filed any documentary proof to show that vehicle had any manufacturing defect. The relationship between both the OPs were on principal to principal basis and it could not be held liable for any independent act of omission committed by other party i.e. opposite party No.2. The complainant took the vehicle on 18.01.2010 and brought back the same to the workshop of OP No.2 on 20.01.2010. It was submitted that from the late hours of 18.01.2010, when the complainant took delivery of the vehicle till 20.01.2010 when he brought back the vehicle, the vehicle had covered a distance of 439 kms. Before taking the vehicle after accidental repairs, the complainant took the trial and found the vehicle in First Appeal No.909 of 2012 8 good condition. He brought the vehicle in question on 20.01.2010 with the complaint of poor pick-up and gear disengagement difficulty. The complainant was asked to replace the turbo but the complainant refused to replace the same. It was further pleaded that the complainant had tried to side track the whole issue by mis-representing that the turbo got damaged in the earlier accident. If there had been any damaged to the turbo at the time of accident, it would have been rectified at the time of accidental repairs. Turbo of the vehicle is not covered under the warranty. It was alleged that the same got defective due to the negligence and misuse on the part of the complainant, which is not covered under warranty as per Clause 5 of Terms and Conditions of Warranty. It was further pleaded that horn and fog lights were consumable articles and can go out of order due to misuse and mishandling and the same are not covered under the warranty. Dismissal of the complaint was prayed for by the OP No.1.
4. OP No.2 filed separate written reply and raised preliminary objections that the complaint of the complainant is not maintainable; the complainant does not fall under the definition of 'Consumer' under the Consumer Protection Act, 1986. The complainant was estopped by his own act and conduct to file the present complaint. The complaint was filed First Appeal No.909 of 2012 9 with ulterior motive to harass the opposite party. It was evident from the invoice placed on the file by the complainant that the vehicle stood hypothecated with Corporation Bank who was the real owner of the vehicle. On merits, it was replied that the complainant was made aware of the model of the year i.e. 2008 and he has given in writing to this effect and requested that the vehicle be delivered to him on 09.01.2009. The vehicle was brought to the workshop in accidental condition at 37541 kms. The repair was done on 15.1.2010 and the complainant took the vehicle in good condition after the trial. It was pleaded that the accident is not covered under warranty. It was pleaded that the trouble with the turbo allegedly took place after the vehicle was collected by the complainant after the accident and the same was not covered under the warranty. So, the replacement, if allowed, was chargeable. The history sheet i.e. service history falsifies the allegations of the complainant. The vehicle was taken to the workshop on 20/21.1.2010 at 37780 kms while it was taken to M/s Kosmo Vehicle Pvt. Ltd., on 20.03.2010 at 37333 km (the meter tampered and was reversed by 349 km). It was again taken to M/s Kosmo Vehicle Pvt. Ltd. on 16.4.2010 at 42377 km (within one month the vehicle had covered 5044 km). On both the occasions, there was no reference to any turbo trouble in the service history, which ipso-facto implies the First Appeal No.909 of 2012 10 hollowness of the allegations. Other allegations were denied. Dismissal of the complaint was prayed for by the OP No.2.
5. The complainant tendered in evidence affidavits as Ex.C-1 and Ex.C21 alongwith copies of documents Ex.C-2 to Ex.C-20 and closed the evidence. The OPs No.1&2 tendered in evidence the affidavits Ex.OP1 to Ex.OP4 along with copies of documents Ex.O5 to Ex.O15 and closed their evidence. On conclusion of evidence and arguments, the District Forum Jalandhar, accepted the complaint of the complainant. Dissatisfied with the order of District Forum Jalandhar, the instant appeal has been preferred against the same by the complainant now appellant.
6. We have heard learned counsel for the parties and have gone though the record of the case as well.
7. It is an admitted fact that the complainant purchased a passenger car Indica Vista on 09.01.2009 from OP No.2, vide Invoice dated 09.01.2009 for Rs.4,47,989/- Ex.C-4. The said car was got insured with New India Insurance Company Limited vide Cover Note No.742405 after paying the premium of Rs.11,718/- for the period 09.01.2009 to 08.01.2010, which is also proved on record by Ex.C-5. The said car carried a warranty of one year given by OP No.1. After that the OP No.2 extended the warranty after taking Rs.3625/- vide Ex.C-2, in which, it was mentioned that the First Appeal No.909 of 2012 11 warranty will expire on completion of three years or 1,50,000/- kms. from the date of purchase, whichever is earlier. As per the affidavit Ex.C-1 of the complainant, Sh.Balwinder Singh, wherein he deposed that during the first year of purchase of the car, the complainant was driving the said car, it met with an accident which caused minor damage to the car on 06.01.2010 i.e. within the warranty period given by the OP No.1. The complainant took his damaged car to OP No.2 who is authorized dealer of Tata for necessary repairs. The OP No.2 got the car belonging to the complainant that it for about 12 days for necessary repairs and same was handed over to the complainant on 18.1.2010 in late hours. On 20.01.2010, when the complainant started driving his car, he found that the engine of the car was not picking up properly. Moreover, there was a problem while changing gears of the car. The complainant has placed on record Tax Invoice Ex.C-9, in which it was mentioned that the standard checks (Horn New spare not available in store). As per the Tax Invoice Ex.C-10, in which it was mentioned that the standard checks (Fog lights not available in store). As per Ex.C-11 dated 15.01.2010, the car was repaired by the OP No.2. We have perused the service history Ex.O-6, which reveals as under :-
Service Date Servicing Kms. Service Type
Dealer
24.01.2009 Cargo Motor 1499 1st Free
First Appeal No.909 of 2012 12
Pvt. Ltd. service
08.02.2009 Cargo Motor 5382 2nd Free
Pvt. Ltd. service
21.03.2009 Cargo Motor 9814 3rd Free
Pvt. Ltd. service
08.06.2009 Cargo Motor 17723 Warranty
Pvt. Ltd.
05.08.2009 Cargo Motor 20490 Free service
Pvt. Ltd.
04.11.2009 Cargo Motor 27371 Paid service
Pvt. Ltd.
15.01.2010 Cargo Motor 37451 Accidental
Pvt. Ltd.
21.01.2010 Cargo Motor 37880 Running
Pvt. Ltd. repair
20.03.2010 Cargo Motor 37333 Paid service
Pvt. Ltd.
16.04.2010 Cargo Motor 42377 Running
Pvt. Ltd. repair
30.08.2010 Cargo Motor 46962 Running
Pvt. Ltd. repair
8. We have also perused the terms and conditions of the warranty Ex.O-15, in which Clause 5 reads as under :-
"5. This warranty shall not apply if the car or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure or by any person other than from our sales or service establishments, our authorized dealers, service centres or service points in any way so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the car is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us, or such services as prescribed in our Owner's Manual and Service Book are not carried out by the buyer through our sales or service establishments, our authorized dealers, service centres or service points.
6. This warranty shall not cover normal wear and tear or any inherent normal deterioration of the car or any of its parts arising from the actual use of the First Appeal No.909 of 2012 13 car or any damage due to negligent or improper operation or storage of the car. This warranty shall not apply to normal maintenance services lik oils & fluid changes, head lamps focusing, fastener retightening, wheel balancing and alignment, tyre rotation, adjustment of valve clearance, fuel timing, ignition timing and consumables like bulbs, fuel filters and oil filters, etc. This warranty shall not apply to any damage or deterioration caused by environmental pollution or bird droppings. This warranty shall not apply to V-belts, hoses and gas leaks in case of air conditioned cars. Slight irregularities not recognized as affecting the function or quality of the vehicle or parts, such as slight noise or vibration, defects appearing only under particular or irregular operations are items considered characteristics of the vehicle.
9. The version of the OPs is that the turbo of the car was replaced and the complainant has given satisfaction note dated 30.08.2010 Ex.C-19 wherein, it has been mentioned the vehicle has been serviced/repaired from M/s Cargo Motor Pvt. Ltd. to the entire satisfaction of the complainant and the complainant has taken the test drive of his vehicle, which is trouble free. On the other hand, the contention of the complainant is that infact the turbo was not replaced by the OP No.2 and this fact was found during service on 25.12.2010 from M/s Cosmo Vehicle Pvt. Ltd., who issued the job card dated 25.12.2010, Ex.C-20. In this case, only dispute remains between the parties regarding turbo of the engine. As per the version of the OP2, the turbo was replaced on 30.08.2010 which clearly proves that the same was defective. There is no First Appeal No.909 of 2012 14 evidence on record to prove that the turbo was damaged in accident. Ex.C-11 is the job card regarding accidental repair. In case turbo is damaged in the accident, it would have been repaired at the time of accidental repair. In case the turbo has damaged in any accident. The OP No.2 has not replaced the same free of cost. We have perused the satisfaction note dated 30.08.2010 Ex.C-19, which reveals that "the OP has replaced the turbo and complainant undertook to withdraw the complaint from the consumer court", which clearly shows that the OPs have entered these lines after taking the signature of the complainant on the satisfaction note Ex.C-19. We have also perused the job card dated 25.12.2010 (Ex.C-20), in which it was mentioned that oil leakage from Turbo CHR break refused by CUST. The District Forum has rightly observed and directed the OPs to either repair the turbo of the engine and in case, it could not be satisfactorily repaired and then, it be replaced free of cost. As per the terms and conditions of the warranty, the accidental repair is not covered but the OP has not repaired the turbo of the car properly. So, only the complainant is entitled to only Rs.17,210/- for the cost of turbo compressor and Rs.3000/- as labour charges i.e. total Rs.20,210/-, which was paid by the complainant to the OP No.2. Dealer and the manufacturer cannot escape from their liability during warranty period.
First Appeal No.909 of 2012 15
10. In the light of above discussion, the appeal filed by the appellant/complainant is partly accepted with regard to enhancement of compensation and the order of the District Forum is modified to the extent that the OPs shall now pay Rs.20,310/- to the complainant within 45 days from the date of receipt of the order and the other part of the order of the District Forum with regard to either repair the turbo of the engine and in case it cannot be satisfactorily repaired, then to replace it with free of cost is affirmed in this appeal.
11. The arguments in this appeal were heard on 06.05.2015 and the order was reserved. Now the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(J.S.Klar)
Presiding Judicial Member
(V.K. Gupta)
Member
May 11, 2015 (H.S.Guram)
Lb/- Member