State Consumer Disputes Redressal Commission
Rajiv Gulati vs Tata Engineering & Locomotive Co. Ltd., on 16 September, 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: 16-09-2008 Complaint No.C-68/2002 Mr. Rajiv Gulati -Complainant R/o B-1 A/56A, Janakpuri, Through New Delhi -110058. Ms. Neelam Gupta, Advocate. Versus 1. Authorised Signatory -Opposite Parties M/s. Tata Engineering & Through Locomotive Co. Ltd., Mr. T.K. Trisal, Commercial Vehicle Division, Advocate. Jeevan Tara Building, 5, Sansad Marg, New Delhi-110001. 2. Regional Customer Support Manager, M/s Tata Engineering & Locomotive Co. Ltd., Passenger Car Division, IVth Floor, Signature Tower, Gurgaon. 3. Chairman M/s Tata Engineering & Locomotive Co. Ltd., Marketing & Customer Support Passenger Car Division, 26th Floor, Centre No.1, World Trade Centre, Cuffeparade, Mumbai-400 005. 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 (ORAL) The complainant had purchased a Tata Safari vehicle from the Authorized Dealer of the OP No.1 i.e. M/s Concord Motors Ltd. New Delhi for Rs.9,06,796/- bearing Chasis No.403011FZZNo.2131 Engine No.483DLTC491FZZ-748246 on 30th September, 2000. The complainant found that within a period of less than 3 months i.e. 13-12-2000, the Power Steering of the vehicle was not working properly and he got the vgehicle checked form the service centre of the authorized dealer of OP No.1, i.e. M/s Concord Motors situated at 19, Shivaji Marg, New Delhi who rectified the defect.
2. That the defect in the power steering still persisted after driving the vehicle about 1300 KMs and that the complainant had again to get the vehicle checked at the service centre of OP No.1 on 03-01-2001. Again on 31-01-2001 the complainant faced the problem with the power steering after driving the vehicle for about 3000 KMs and got it checked from the service centre of the OP No.1.
3. That hardly had the complainant drove the vehicle for another 3400 KMs that he found the power steering very hard and rushed the vehicle to the service centre of OP No.1 on 03-03-2001. After a few days again the complainant found the leakage in the power steering on 22-03-2001 and got the vehicle checked from service centre of OP No.1.
4. That at this stage the complainant was totally frustrated when the problem of power steering was not showing any sign of improvement. All the facts stated above were brought to the notice of OPO No.1 urging upon him to get the vehicle inspected by more experienced expert engineer who can rectify the defects to complainants satisfaction and save him from the danger of driving totally undependable vehicle in busy and crowded city of Delhi.
5. That pursuant to the foregoing request of the complainant, the vehicle was reinspected by service centre of OP No.1 on 21-04-2001 but no improvement was found even thereafter. The complainant again deposited his vehicle with the dealer of OP No.1 on 22-05-2001 for check up and the vehicle was returned after replacing the gear box and shaft of power steering.
6. That the vehicle was got repaired number of times at short intervals from the authorized service centre of M/s Concord Motors at Shivaji Marg, New Delhi.
The OP No.1 also replaced the Power Steering and Fuel Injection Pump but the misery of complainant did not see the end of the problems.
7. A notice dated 13th April, 2001 was sent to the OP No.1 with a request to rectify the defects in Power Steering but no improvement could be effected. Again a notice was sent to the OP No.1 on 6th October, 2001 with a request to rectify the defects. A legal notice was sent to the OP No.1 dated 18th March, 2002 with endorsement to OP No.2 requesting that the vehicle should be replaced as all repairs/replacements done by the OP No.1 have not improved the condition of the vehicle. No reply has been received from OP No.1.
8. That the OP No.1 & 2 miserably failed to discharge their obligations. The complainant who is consumer, had to undergo mental suffering besides the loss of business and the OP No.1 despite notices repeatedly has neither removed the defect nor has replaced the vehicle and as such the complainant became entitled to the replacement of the vehicle or alternatively is entitled to a sum of Rs.9,06,796/- being the cost of the vehicle besides the damages and costs.
9. That the vehicle was got checked by the Govt. Approved Surveyor, who has opined inter-alia that there is a major defect in the Power Steering System either in the Pump Assembly or in the Steering Box and it had to be immediately rectified for the safety drive.
10. That the defects in the vehicle are inherent as a result of poor workmanship of the manufacturers for which the complainant has suffered loss and damage. OP No.1 & 2 were under legal obligation to keep the vehicle in perfect working order during the warranty period of 18 months from the date of its purchase by the complainant which they failed to do.
11. That the cause of action arose in favour of complainant on 30.9.2000 when the car was purchased from Authorised Dealer of OP No.1 at New Delhi and when defects were found and for which the Authorised Service Centres at New Delhi were approached. But the same could not be rectified because of the manufacturing defects and finally on 18.3.2002, when the legal notice was sent but without result even otherwise the complaint is well in the period of warranty.
12. Complainant has sought the following reliefs:-
(a) Replace the vehicle or in the alternative pay Rs. 9,06,796/- being the price of the vehicle along with the pendentelite interest @ 18% per annum.
(b) Rs. 2,00,000/- as compensation for harassment, inconvenience, frustration and mental agony suffered by the complainant.
(c ) Rs. 15,000/-
towards cost of legal expenses.
13. In the defence, OP No.1 and 2 have come up with the following version :-
(i) That the present complaint is bad for misjoinder of necessary parties in as much as admittedly the car in question was got repaird through M/s Concorde Motors Ltd., Nawal Auto Care, M/s Him Motors, M/s Autolinks Pvt. Ltd., M/s Marudhera Motors and M/s Roshan Motors Pvt. Ltd., but the said service centres from whom the alleged repairs were got effected being the necessary and proper parties have not been impleaded in the present complaint.
(ii) That the vehicle in question admittedly was purchased by the complainant in order to promote his business and to use and enjoy the same for commercial purpose only.
The vehicle is being used for commercial purposes, with the result the complainant can not claim the status of a Consumer under the Act and is therefore, not entitled to any relief.
Supreme Court of India in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, reported in 1995 II CPJ 1 (SC) has held that if any person obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the Consumer Protection Act.
(iii) That the OPs have manufactured the vehicle after obtaining the Type approval and confirmation of production certificate from ARAI, Pune, which is an accredited Research Institute under the Ministry of Industry, Govt. of India.
(iv) That the Surveyor named by the complainant himself is not confident it shows his effectiveness and understanding at the mechanism. He has not stated his qualifications and his relevant experience in the field.
(v) That the problems as reported and pointed out were rectified/removed by M/s Concorde Motors Ltd. and after the initial rectification/removal of alleged problem, as and when the complainant reported with his vehicle, the vehicle was checked by the Engineers of the authorized Service Centre of the answering OPs, and the same was duly repaired to the complete satisfaction of the complainant. Although there was no problem or defect in the power steering as and when the same was checked by its engineers yet due to the request and insistence of the complainant, they replaced the Gear Box of Power Steering to satisfy the customer as a gesture of goodwill. No abnormalities were found at any point of time in the Power Steering. The notice dated 18.03.2002 was duly replied vide letter No.RO:ND:L:3693 dated 25.03.2002.
(vi) That as per the information gathered from M/s A-One Motors, although the vehicle in question was brought to the said Service Centre with the alleged problem, but no problem was found or noticed. From the information made available by M/s Nawal Autocare, Mathura, there was no problem in the power steering except lack of oil which was got filled and the power steering rendered perfectly O.K/alright.
(vii) As per the information gathered from M/s Marudhara Motors, Jodhpur, no such problem was observed or reported to be found in the power steering. Even from the information gathered from M/s Roshan Motors Pvt. Ltd., they also did not find any abnormality in the power steering or in the pick up.
(viii) There was no occasion for M/s Zed-F to give its opinion as neither had it had any authority nor any such problem was reported or found in the vehicle. The vehicle in question including the power steering is operating/functioning properly without any problem therein as is reported by various service centres of the answering OPs. There is no need for replacement of vehicle as alleged. There was no problem found in the power steering of the vehicle, which was endorsed by Power Steering Manufacturer M/s Zed-F India.
Further at this time, the vehicle had done about 46000 kms. which itself clearly go to reveal that the complainant had enjoyed the vehicle and no such major defects were observed/reported in the vehicle till date.
(ix) The complainant is not entitled to any relief and the complaint being an abuse of process of law and also being not maintainable is liable to be dismissed.
(x) As per the provisions of Section 13(1)(c) of the Consumer Protection Act, it is only the Consumer Forum/Commission who shall direct the appropriate laboratory to make an analysis or test whichever may be necessary with a view to find out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereon to the Forum/Commission and under no set of circumstances the complainant has any right to seek opinion from any alleged expert of his own. The alleged surveyors report is contradictory, vague and evasive in nature.
14. In rejoinder the complainant reiterated his allegations.
15. At the outset it may be mentioned that the complainant had during the pendency of this complaint sold the vehicle on 26th August 2002 for Rs. 5,05,000/-.
16. Admittedly in the instant case after driving the vehicle for about 1300 kms it started giving trouble in power steering which was got repaired number of times within a short period. But according to the complainant still the problem was persisting.
17. We have taken a view that whenever a consumer decides to purchase a brand new vehicle or goods at considerably high price and does not choose to have a second or third hand vehicle the minimum expectation of a consumer is that he would not face inconvenience or physical discomfort or other kind of financial loss etc. for getting the defects removed every second or third day. Otherwise the very intention of a consumer to go for a very costly brand new vehicle should suffer such a blow that he would undergo immense mental agony, harassment, emotional suffering, physical discomfort and would deem himself as subject of injustice.
18. The circumstance of replacing the power steering system coupled with the report of the government approved surveyor who checked and opined that there is a major defect in the power steering system and the various service invoice as well as taking of the vehicle to the workshop after plying 1300 kms number of times persuade us to declare the vehicle defective in view of the definition of word defect which 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.
19. We have also taken a view that as to the disputes between the consumer and service providers and traders endeavour should be made to settle the dispute once for all and if such orders are passed like replacement of defective goods by new goods free from defect or removal of the defects then the possibility of new goods also not being defective or the removal of defects will not be upto the satisfaction of the consumer cannot be ruled out and such orders give rise to another bout of litigation between the parties.
20. In the instant case the vehicle developed defect within less than three months. The power steering of the vehicle was not working properly. Admittedly it was got checked from the service centre and authorized dealer of the OP. In spite of having 1300 KMs the defect of the power steering system continued persistently. After having plied 3400 KMs the power steering was found very hard. The complainant took the vehicle to the service centre. There was no sign of improvement in spite of all efforts of the OP. Again on 22-05-2001 the vehicle was left with the dealer for check up which was admittedly returned after replacement of the gear box and shaft of power steering. In spite of the replacement of the gear box the problem still continued and the complainant was forced to approach the dealer on 12-06-2001, 05-07-2001 and 21-07-2001.
21. Having failed in his efforts to get the above defects which were inherent manufacturing nature, the complainant got the same inspected on his own from M/s A-One Motors, Mathura Road, New Delhi on 19-07-2001 for the problems of low pick up and power steering. When he was going for business trip to Agra on 05-10-2001, the power steering got jammed at Mathura. All these facts were brought to the notice of the OP with the request to take immediate step to get the defect of the power steering repaired.
22. He again contacted the authorized dealer of the OP NO.1 M/s HIM Motors on 30-12-2001 as the office of the authorized dealer viz. M/s Concord Motors had been closed and in spite of having checked up thoroughly, the problem still persisted.
23. Aforesaid facts are sufficient to declare the quality of the vehicle defective when tested on the standards of word defect as defined by Section 2(1)(d) of the Consumer Protection Act, 1986 which 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.
24. Every trader or manufacturer has to compensate the consumer adequately for having sold defective goods and for deficiency in service in terms of section 14 of the Consumer Protection Act, 1986.
25. Since in the instant case the vehicle was ultimately sold by the complainant at a cost of Rs. 5,05,000/-, for the mental agony, harassment, financial loss suffered by him for taking the vehicle time and again for removing defects from various dealers of the OPs, the OP has to compensate the complainant adequately.
26. The word compensation for the purpose of protecting the rights of the consumers has been given a very wide connotation by the Supreme Court in case after case and recently in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme Court Cases 65, the Supreme Court has observed that the service provider or trader has to compensate the consumer for the mental agony, harassment, actual loss, physical discomfort or any other injustice suffered by him. The observations of the Supreme Court are as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
27. In our view, since the vehicle had already been sold by the complainant and the complainant had been running the vehicle for some time, may be reluctantly, a lump sum compensation of Rs. 2 lacs besides Rs. 10,000/- towards cost of litigation shall meet the ends of justice.
28. Aforesaid payment shall be made within two months from the date of this order.
29. Complaint is allowed and disposed of in aforesaid terms.
30. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
31. Announced on 16th September, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj