w w w . L a w y e r S e r v i c e s . i n

Abhay R. Bhatwadekar (Since Deceased Through Lrs.) & Others v/s Tata Engineering & Locomotive Company Ltd. & Another

    First Appeal No. 276 of 2011

    Decided On, 12 September 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellants: Karan Batura, Nishant Piyush, Advocates. For the Respondents: R1, Aditya Narain, Mishra Raj Shekhar, R2, Deepak Joshi, Advocates.

Judgment Text

Aggrieved by the order dated 04.03.2011 in CC No. 02/2011 passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short 'the State Commission') Abhay R. Bhatwadekar (now deceased represented by his Legal Heirs) preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short 'the Act). By the impugned order, the State Commission has dismissed his Complaint after holding the same devoid of any substance.

2. Briefly put, the facts of the case are that on 02.05.2000 the Complainant made a payment of Rs.95,853/- towards booking amount of a passenger car i.e. Tata Indica-Euro-II-Diesel-DLX bearing registration No. MH-02-JA-8485 with Concord Motors Ltd. (hereinafter referred to as 'dealer'). The car is manufactured by Tata Engineering & Locomotive Co. Ltd. (hereinafter referred to as 'the manufacturer'). He paid an amount of Rs.3,63,000/- on 11.05.2000 as per the estimate of the dealer with the list of additional accessories. The dealer issued salesinvoice dated 15.05.2000 to him. He further paid a sum of Rs.15,755/- towards insurance premium of the said vehicle. It was stated that the dealer promised to deliver the car on 15.05.2000. However, till 26.05.2000, the car was not delivered and when theComplainant went for taking the delivery of the car, he was shocked to find that the said vehicle was not in a road-worthy condition. It was averred that the central locking could not be fitted because the entire stock of locking system had been stolen and the engine of the said car roared like a modern jet when started. The mechanic of the dealer poured engine oil by taking out the same from the gauge and sprinkled on the fan belt, but the engine was not functional. It was pleaded that the dealer insisted that the Complainant take delivery of the said car, but the Complainant refused to do so and immediately brought the said fact to the notice of the Senior Vice President of the Manufacturer vide letter dated 26.05.2000 and asked for refund of his money along with interest @ 24% p.a. or in the alternative replace with another car free of defects. The manufacturer vide its letter dated 29.05.2000 expressed regret for the inconvenience caused due to the unexpected fan belt noise and assured to return the car after repairing the same on 30.05.2000. The Complainant immediately called upon the dealer seeking information regarding the rectifications carried out. It was stated that vide its letter dated 30.05.2000 the dealer assured the delivery of the car in absolutely good condition and admitted that there was a problem in the A.C. and the alternator belt and that they had sent the car to the workshop at Pune and that they would be delivering the said car to the Complainant on 30.05.2000.

3. It was pleaded that the Complainant refused to take delivery of the car as the same was defective, but the dealer forcibly handed over the delivery of the vehicle to the Complainant at his premises, contrary to the usual procedure of effective delivery at the showroom. It was averred that by its letter dated 20.05.2000 the dealer regretted the inconvenience caused to him.

4. It was pleaded by the Complainant that the car was not delivered defect-free. It had to be taken to the dealer for repairs on nearly 8 occasions in a period of one year, without any result. The Complainant then lodged a Complaint with Western India Automobile Association which sent the car to Mid Town Motors for a detailed inspection and a third party opinion. Mid Town Motors had given an opinion supporting the version of the Complainant. The Complainant then lodged a Complaint with the Chairman of the manufacturer and vide his letter dated 17.10.2011 called upon the manufacturer to replace the vehicle or refund the entire consideration of the same, but received no favourable response. It was stated that the car had spent more time in the garage than on the road and during that period when the car was not functioning, he was compelled to hire a Qualis and had to spend a sum of Rs.10,000/- to Rs.15,000/- per month for the same. Ultimately, the manufacturer called the car for final verification and repairs. After about 26 days of verification, the manufacturer brought the car to the residence of the Complainant but the car was automatically locked and the representative of the manufacturer could not get out of the car. The engine of the car could not be stopped by the driver with the help of the ignition key. These facts were brought to the notice of Mr. S.G. Saxena, the General Manager of manufacturer.

5. Finally, the Complainant by his letter dated 04.12.2000 called upon the dealer as well as the manufacturer to take back the defective vehicle from his premises and refund the total cost of Rs.4,75,428/- within 7 days of receipt of notice. However, they failed to comply with the same. Hence, the Complainant preferred a Complaint before the State Commission seeking directions to the Opposite Parties to take back the subject defective vehicle bearing No. MH-02-JA-8485 and refund to him the paid consideration amount i.e. Rs.4,75, 428/- along with interest @ 18% p.a. on the said amount w.e.f. 11.05.2000 till the date of payment, Rs.3,00,000/- towards the expenses incurred by him for hiring of the vehicle when the subject vehicle was lying in the garage together with costs of Rs.20,000/-.

6. The manufacturer resisted the Complaint and filed their Written Version, stating that the vehicle was delivered to the Complainant after rectifying minor repairable defects, but the Complainant had refused to give an acknowledgement in writing. It was pleaded that the vehicle was with the Complainant and that the same was required to be sent to a recognized laboratory as contemplated under the Act for obtaining a laboratory report to establish that the vehicle was defective. It was also pleaded that if it is a case of the Complainant that the vehicle was not with the Complainant then the dispute does not survive as a ‘Consumer Dispute’ and the proper course for the Complainant would be to file a Civil Suit. The manufacturer denied that they were guilty of deficiency in service of any kind. It was stated that the noise in the belt was observed in the car at the time of delivery on 26.05.2000 and the same was attended to on 30.05.2000; the pre-delivery inspection i.e. the check-up of the car was done by the dealer before the sale of the car; the car was brought to the workshop for service on 20.06.2000 and it was serviced giving it top priority; after the said service, the Complainant had brought the car again twice for service and four times for rectification of minor Complaints; all the Complaints were attended to as and when reported. It was admitted that the Complainant had written letters dated 07.05.2001 to the dealer and letters dated 10.08.2011, 10.09.2011 and 14.09.2011 to the manufacturer. It was further pleaded that the Complainant was requested vide letters dated 10.08.2011 and 03.09.2011 to make his car available for inspection but he had refused to do so. It was denied that the car was defective as opined by M/s Mid Town Motors. It was stated that the Complainant had been using the car regularly and the car had covered more than 20000 kms. It was also pleaded that the car was attended to in November, 2001 free of cost by way of a goodwill gesture, despite the fact that at that time, it was out of the warranty period. It was admitted that the driver who went to deliver the car to the Complainant’s house has confirmed the occurrence of electrical malfunctioning once. However, the said Complaint did not occur afterwards. The Complainant was offered a thorough check-up if the Complaint would re-occur. It was also stated that the car was fitted with extra electrical equipment namely the remote locking which may also be the cause of malfunction and that there was no deficiency of service on their behalf and hence the Complaint be dismissed.

7. The dealer in their Written Version stated that the Complaint filed by the Complainant was false, frivolous and deserved to be dismissed. It was pleaded that the delivery of the car was taken by the Complainant after checking the car and after duly satisfying himself. The defect in the fan belt was attended to and rectified at the earliest. It was further pleaded that even if still there was any genuine defect in the car it was ready and willing to rectify it to the satisfaction of the Complainant. It was further pleaded that the plethora of correspondence right from the beginning would go to show that the Complaints of the Complainant were attended to and the allegations of the Complainant are absolutely false and unbelievable. It was also stated that a person, highly educated and intelligent like the Complainant, would not take delivery of the car without being satisfied on all counts. The dealer denied that there was any deficiency in service on its part.

8. Ld. Counsel appearing for the Appellant/Complainant submitted that the State Commission had failed to appreciate that the said driver had never handed over the keys of the car to the Appellant nor did he state anywhere in his affidavit that the keys were handed over; that the delivery was never accepted as there is no signatures of acknowledgement; that the State Commission had erred in giving a literal meaning to the words ‘take back the car’ without considering that the Appellant had been repeatedly asking for refund of the amount paid or for replacement of the defective car with the new car; that the State Commission has not taken into consideration that there was no documentary evidence that the car was delivered back to the Appellant and therefore, Section 114 of the Indian Evidence Act, 1872 was not adhered to. Ld. Counsel also contended that the various job cards filed show that the subject car was having numerous problems and that the manufacturer and the dealer were unable to rectify the same despite replacing a number of parts and therefore, it can be clearly stated that there was an inherent defect in the subject car. He further submitted that the letter dated 16.05.02 specifies that the dealer had attempted twice to deliver the vehicle to the Appellant firstly on 10.12.01 and secondly on 25.01.02 which concedes the fact that after the attempt of 10.12.01 the vehicle was taken back by them.

9. Ld. Counsel appearing for the manufacturer vehemently contended that the registration still shows that the Appellant is the owner of the car and therefore, the car is in the possession of the Appellant herein; that the pleadings of the Complainant is silent about the whereabouts of the car; that the State Commission is rightly accepted the affidavit of the driver and that in the absence of any pleadings in the Original Complaint regarding the status of the car the case cannot now be improved by evidence. Ld. Counsel contended that the State Commission had rightly framed issues which reads as follows:-

'Whether Opponent Nos. 1 and 2 are guilty of deficiency in service of any kind and whether the Car should be replaced by asking Complainant to give back the defective car to the Opponents?'

10. He further relied on the Judgement of Sardul Singh Vs. Pritam Singh & Ors. (1999) 3 SCC 522. He submitted that when the original prayer of the Complainant was to ‘take back the car’ the question of possession being with the dealer does not arise and that in the absence of any evidence on record that there is a manufacturing defect and when the Appellant did not adhere to Section 13 which stipulates sending of the car to the laboratory for testing, it cannot be stated that the car has any manufacturing defect.

11. The facts not in dispute are that the Appellant purchased Tata Indica-Euro-II-Diesel-DLX car manufactured by M/s Tata Engineering & Locomotive Ltd. by paying an amount of Rs.4,58,853/- towards consideration and Rs.15,575/- towards insurance premium; the promised date of delivery was 15.05.2000 but the vehicle was delivered on 26.05.2000. It is the Complainant’s case that when he went to take the delivery of car it was not in a road worthy condition as the central locking system could not be fitted and there was tremendous noise in the engine, for which the dealer’s mechanic tried to rectify by pouring engine oil by sprinkling the same on the fan belt but the problem was not solved. It is seen from the material on record that the Appellant vide letter dated 26.05.2000 addressed to the Senior Vice President requested for refund of the money together with insurance paid and interest or in the alternative to supply a defect-free new car. It is also seen that the dealer immediately regretted the inconvenience caused due to fan belt noise and assured delivery of the car on 30.05.2000. When the Appellant wrote another letter dated 3.05.2000 requesting the dealer to explain the exact steps taken to prevent the noise in the car, the dealer replied that the problem as of the AC and the alternator belt and that they had sent the car to the workshop to Pune and were expecting the delivery soon. It is the Appellant’s case that the dealer was not following the procedure of pre-delivery inspection and that he was denied the opportunity of rejecting the vehicle which was defective as the vehicle was already registered in his name. It is seen from the record that the Appellant once again lodged a Complaint with the dealer on 19.06.2000 and thereafter when the car repeatedly gave the same problem the job cards show that the dealer had serviced the car on 02.06.2000, 19.907.2000, 14.09.2000, 23.09.2000, 12.01.2001, 24.02.2001 and on 08.05.2001 but the Appellant was not satisfied as the problem persisted. The letter dated 10.08.2001 written by the Appellant to the Senior Vice-President, General Manager, Senior Deputy General Manager of the Manufacturer and also to the dealer explaining the problems that he has been facing with respect to the said car reads as follows:-

'Dear Sir,

This letter refers to my letter of 26th May, 2000 and records with deep concern the traumatic experience, I have gone through in running this car. This car was accepted under protest in the background of cannibalization (sic) enumerated in our letter referred to above and fax reply dated 30th May, 2000. We also place on record that upon delivery we rejected the piece and after 3 days we accepted the same under assurances from higher authorities of Concorde Motors as well as Telco from Pune which please note. Hardly 13 months have run out since the delivery and free replacements have occurred at the conclusion of average 2500 kms. run by the car on account of warranty. The listing of parts replaced run into hundreds of parts though my mileage run is not commensurate with replacements which speaks volumes for unstable quality vis a vis high sounding, decorative and bombastic advertisements engolising the unfailing technical quality and the standards of the car bordering upon world class quality. You are also aware that upon delivery, the car roared like a jumbo jet with many other quality problems but we accepted the same under your assurance backed by unfailing name of the House of Tatas.

We also recall the memory, your assurance in May 2000 that we should accept the car and keep on taking trials which is not a standard ethical business practice. Now the car is due for replacement of Great Box as well, leaving only the engine to be replaced as all other sub assemblies have already been replaced as evidenced by your service invoices, the Xerox of which have been enclosed to buttress my contention. Further on a cursory test run the following seem to be engaging your urgent attention.

1) The belt is making noise.

2) There is humming coming in 1st, 2nd, 3rd, gears at 20 kms, 40 kms, 60 kms, respectively.

3) 1st and 3rd gears hard to engage.

4) The metallic sound is coming underbody.

5) Problem in all foundations (Mountings).

6) Problem in clutch, clutch hard to operate.

7) Problem in A.C. there is no cooling.

8) Problem in rear left & right suspensions.

9) Problem in electric Circuit attached to Battery since battery is discharging.

10) Front left side power window not working.

11) Front left side lock not working properly.

12) Poor Average app. 9(nine) per litre.

13) Poor pickup.

14) When the headlights are switched on, the upper beam is pointing left.

15) Adjust front water sprinklers.

Arising from bitter experience and difficulty in driving as though I am driving a truck prompts me to seek a lasting solution, so that I have the comfort of driving instead of the pain. Should this problem not resolved to my entire satisfaction in terms of the price I have paid, I am painfully constrained to move the Consumer Forum or pursue such other legal remedies that I may be advised to protect my sovereignty as a consumer in this scenario of globalisation, which is not to my liking. The shortest course to terminate this trauma is either replacement of the car with New Indica-DLX V2 Euro II which matches parameters described in your advertisements, with differential being charged to me or refund my money, whichever is acceptable to you.'

12. The Manufacturer referring to the afore-noted letter replied as hereunder:-

'Dear Mr. Abhay,

This has reference to your letter dated 10th August, 01 regarding your ‘Tata Indica’.

We regret for the inconvenience, if any, caused due to performance of the car not to your expectations.

We would request you to send your car on any day convenient to you to M/s Concorde Motors, for having a look at the performance mentioned by you and to take corrective action thereupon. I assure you that our Engineers who are with Concorde Motors, will do their best to attend the car to your satisfaction.'

13. Thereafter Appellant once again addressed a letter on 10.09.2001 regarding his anguish about the defects in the car as it has been sent to the garage six times and has also filed the data sheet clearly evidencing the dates and the kilometres with respect to the number of times the Appellant had to rush to the garage when it was a new car which has run only 2500 kms and was also within warranty. Ld. Counsel appearing for the Appellant relied on the Inspection Report given by M/s Mid Town Motors which reads as follows:-

'Dear Sir,

As per instructions from Mr. Vimal Shah, President, WIAA and your letter dated 15.09.01, we have inspected and tried the above-mentioned car and give below our report on the faults found in the car when inspected on 15.09.01 at mileage 20105 kms.

On applying the starter, the starter motor is making an unhealthy sound as if the bushes are worn out and will require removing and overhauling.

When the Engine starts there is a lot of resonance that can be heard which is more noticeable when all the windows are closed. This could be due to a clogged exhaust system or due to leakage/design of the air intake system.

When the engine is revved to 2500 RPM in standstill position, there is a metallic vibration from the direction of the Front Right Fender. Certain components will have to be dismantled to ascertain the cause.

The ‘V’ belt tensioners are also making a sound just off idle and will have to be replaced.

On accelerating in second gear, the car moves forward with slight jerks.

There is a tremendous humming sound above 40 kmph from all the four wheels, which seems to be a combination of wheel bearings and tyres. At 55 kmph and above, a further fluctuating, heavy humming sound was also noticed. The wheel bearings and tyres will have to be removed and checked/replaced.

The Rear Suspension makes a squeaky noise when going over small bumps and a heavier thud when going over the tar strips on a concrete road. The rear suspension will have to be opened and inspected for defects.

The Wheel Alignment needs to be done as the car is pulling to the right.

On the engine reaching operating temperature, it is extremely difficult to engage any gear from the neutral position. The Clutch Cover Assy. will have to be replaced.

When first started the air conditioner was cooling all right, but after about 20 minutes of driving, the cooling stopped for a few minutes and then started cooling again. The engine temperature after 40 minutes of city driving with the A/c on was around the three-quarter area of the temperature gauge and which seems on the high side.

The Front Left door glass does not go up and will have to opened and repaired.

There is visible black smoke being emitted from the exhaust when the engine is revved.

The PUC when checked was very high at 62.8%, 65 being the uppermost limit.

On going through the Service records as provided by you, it seems that most of the above defects have been attended to before but are recurring. However, some of the other defects like black smoke emission, High PUC reading, jerks on acceleration, high fuel consumption as pointed out by you, could mean defects in the Fuel Injection Pump and Fuel injectors, which will have to be removed and correctly calibrated.

It is our considered opinion that the extent of repairs and replacements carried out on your car and which still have to be carried out, are extremely unusual, for a new car, especially taking into consideration the mileage that these repairs were carried out at.

Assuring you of our services as always.'

14. This Report evidences that number of repairs and replacements carried out on the said car is extremely unusual for a new car specifically taking into consideration the mileage at which these repairs were carried out.

15. It is pertinent to note that the manufacturer and the dealer did not file any objections to this Report before the State Commission. A perusal of the job cards evidence the repeated problems and having regard to the various communications together with the fact that the car was a new car and had done only an average of 2500 kms. and after keeping in view the report given by M/s Mid Term Motors we are of the considered view that the vehicle indeed was having manufacturing defects.

16. The next important point which falls for consideration is that the manufacturer and dealer contend that the vehicle was delivered to the Appellant/Complainant whereas it is the Appellant’s case that the vehicle was never delivered and that the prayer in the Original Complaint ‘to take back the car’ is only by way of stating that the Complainant still had ‘symbolic possession’ and not ‘physical possession’ as the car was still lying with the dealer. The State Commission relied on the affidavit of the driver Mr. Umesh Kadam which states that on 10.12.01 he had personally delivered the Tata Indica car at the residence of the Complainant and it was in road-worthy condition. It is stated in the affidavit that the Complainant had refused to sign the delivery receipt/acknowledgement when the car was delivered to him. There are no substantial reasons given by the manufacturer/dealer as to why the car was not taken back as it is their case that the Complainant had refused to sign the delivery receipt. Keeping in view that it is a specific contention of the Complainant that the car was defective and several letters and communications were also exchanged between the parties, taking of an acknowledgement/delivery receipt attains paramount importance and it is not understood as to why the dealer did not follow the regular procedure of taking an acknowledgement at the time of delivery. The Complainant had also filed an affidavit specifying t

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hat as the car had electrical problems he had refused to take delivery and also deposed that the keys were never handed over to him and that he does not know the whereabouts of the vehicle. We find force in the contention of the Appellant/Complainant that the specific usage of the word ‘taking back of the car’ can be construed as the Complainant not wanting the car but instead seeking refund or replacement of the said vehicle. The words have to be interpreted together with the facts of the case, the job cards and the correspondence exchanged between the parties. Apart from the affidavit of the driver there is absolutely no documentary evidence filed by the manufacturer or the dealer that the possession was indeed given to the Complainant herein. Provisions of the Act have to be construed for consumer protection which is the main spirit and objective of the Act and having regard to the facts and circumstances of the case we are of the considered view that the construction approach should be adopted and any of the provisions have to be interpreted in such a way which is not ultra vires to the provisions of the enactment. Keeping in view the afore-noted observations we are of the considered opinion that the contention of the Ld. Counsel appearing for the Manufacturer that the words ‘take back the car’ should be strictly construed to the effect that the Complainant was having ‘physical possession’ of the car, is unsustainable. The State Commission has given a finding that the possession of the car was with the Complainant as he had sought for a direction to the manufacturer and the dealer to take back the defective car. At the cost of repetition, we reiterate that in the absence of any documentary evidence to substantiate the contention of the manufacturer and the dealer that the car was indeed delivered to the Appellant/Complainant herein, along-with the afore-noted reasons, we are of the considered view that there is deficiency of service on the part of the manufacturer and the dealer as repeatedly the car had gone to the garage for repairs when the subject car was within warranty and had barely done 2500 kms, apart from the fact that there is no evidence that the car was ever delivered to the Appellant. 17. Hence this Appeal is allowed and the order of the State Commission is set aside and we direct the manufacturer and the dealer, jointly and severally, to refund the amount of Rs.4,58,853/- excluding insurance. Appellants are entitled to this amount along with reasonable rate of interest @ 6% p.a. from the date of the filing of the Complaint till the realization together with costs of Rs.10,000/-.