Cynthia A. Colaco, Member
The present complaint is filed under section 12 of the Consumer Protection Act as against the Opposite Parties and in the said complaint it is stated as under:
a) That in January 2010 the Complainant short listed and decided to purchase a Fiat Linea Dynamic Pack and was informed by the Opposite Party no. 2 that Fiat had stopped production of the said variant although it was flashing on the internet; that the Complainant contacted the Mumbai Office and also got an uncertain answer. That he was informed by an employee of the Opposite Party no. 2 that a December 2009 model of Linea Active is available; that being a December 2009 model he purchased the Fiat Linea on the 30-01-2010; that all the necessary documents for registering the car were handed over to the Complainant on 02-02-2010; that on the Insurance document the date of manufacture of the car was entered as January 2010 whereas since in the sale certificate it was mentioned as January 2009 he presumed it was a typographical error, and the car was manufactured in 2010.
b) That the said vehicle was registered by the Complainant with the RTO Office under No. GA-O8-F-1415 and chassis no. MAH11011709001054AQZ.
c) That subsequently on taking delivery of the vehicle the Complainant became aware that the car was one year old, that the same was lying in the rain and sun and appeared to be a used car; that the car had many manufacturing defects.
d) That on knowing the facts the Complainant refused to take delivery of the car but was informed that the registration done cannot be cancelled leading the Complainant to realize that he had been duped for seven and odd lakh rupees and took the car under protest.
e) It is further the case of the Complainant that the car is faulty, the steering of the car is jammed, after running ten kilometers, that the gear shifts is very difficult, the plastic on the dash board is distorted. The oddment drawer does not get locked, the front bumper and fluid lid is distorted. The hydraulic supports of rear boot is broken, that the seat belt light remains on permanently displayed, that the doors are jammed and are difficult to open, that all the problems are persisted till the date of filing the complaint, that at the time of taking delivery the upholstery was very dirty and the body of the car was full of scratches and dents, that the battery was very weak and the dealer failed to hand over duplicate key at the time of taking delivery, that the key handed over was a very old used key and of different variant foldable key having remote locking system , the key hole too was very old and full of scratches.
f) That various mails were written to various company persons including to the Customer Care Relation Fiat Group Automobile person, however all the mail sent did not evoke a favorable response. So also his demand for a written statement that the car was supplied with two sets of original keys was not adhered to, on the contrary mail was sent to one person by name Anand to explain to the Complainant and make him understand the gap in information.
g) A written mail to Manu Srivasthava was replied stating that the matter is co-ordinated with their distributor Tata Motors for update and that the concerns would be resolved on priority basis. That an order had been placed for the keys required by the Complainant and that he would be informed on their arrival.
h) That the first servicing with the Opposite Party no. 2 took around a week with most of the issues unresolved, that even the broken hydraulic support of the rear boot was not attended and the car had to be taken back from the security check up at the gate and had to be taken to the servicing station to be attended to which was replaced in exactly two minutes.
i) The rear tail lights were full of water and fused, both were replaced with substandard products. That the Complainant has approached the Opposite Party at least on ten occasions however the problems still continue and cannot be resolved by the Opposite Parties.
j) The supplying of a defective and used car with numerous internal and external defects and not being able to rectify the same has caused tremendous mental torture and agony and constitutes deficiency of service.
k) That on 05-12-2011 a legal notice was addressed to the Opposite Parties, the same has not been replied to. That the Complainant took the car for third servicing to a dealer Manickbag Automobiles Pvt. Ltd. at Belgaum which servicing took around seven days however the same problems continued and it was noticed that the front wheel assembly nut was fixed with 'teflon tape', however the front hub and bearing were replaced under warranty by the Opposite Party no.1.that for the third free servicing the Complainant was requested to pay for a brake pad set a sum of Rs.2367.54 which he opines got worn out due to the front wheel assembly nut which was fixed with 'Teflon Tape."
l) The cause of action arose as a defective car was supplied to the Complainant and continues till date as the car is not replaced or compensation paid.
m) Hence the complaint came to be filed praying that the car be replaced and a sum of Rs.1,00,000:00 be paid for mental torture and agony Or to refund Rs 7,03,875/- with 18% interest from 30-01-2010 and also the road tax amount paid of Rs.42,543 with interest of 18% from 02-02-2010.
n) The said claim was presented on 27-01-2012 and admitted on 15-03-2012.
2. The Opposite Party no. 2 filed their written version wherein they stated as under:
i) That the car in question was invoiced to them on the 30-01-2009 and delivered to the Opposite Party no. 2 on 26-02-2009.
ii) That the car had to be unloaded manually as the transporter had misplaced the keys of the same. That subsequent to following up the issue on 02-04-2009 only one key was handed over to the Opposite Party no. 2, which key was not standard with Fiat Linea Dynamic Pack Cars.
iii) That at the end of January 2010 the complainant had visited the showroom of the opposite party on few occasions to negotiate prices and freebees on various car models.
iv) That on inquiring about the Fiat Linea Dynamic Pack he was informed that the production of the said model had stopped and was further informed by Mr. Ghodge that there was only one car in the stock manufactured about a year back and available and denied that it was either stated or implied to the Complainant that the car was a December 2009 model or that the Complainant stated to any personnel of the company that the vehicle being a December 2009 and January 2010 does not make any difference was denied to.
v) That the said car had only one key and denied that the variant was flashing on the net as claimed.
vi) That he demanded that he be given a cash discount and free accessories to make up for such devaluation, since the said car was about a year old. That the Complainant was provided 13,000:00 cash discount, a free music system along with antenna and speakers, matting and mud flaps worth Rs.15,000:00 anti rust treatment and paint protection worth Rs.7,500:00. Collectively amounting to Rs 35,000:00 which was deducted from the sale price and the balance was paid by the Complainant; that the Complainant was insisting on more discounts under the prevailing schemes of free insurance and extended warranty and road side assistance but was informed that such schemes could not be extended to the car in question as it was about one year old.
vii) That prior test drive and inspection was given before the purchase. That after inspecting the car the Complainant took a test drive and asked for further cleaning of the vehicle before delivery. That prior to delivery the vehicle was also inspected by the service manager and found to have no defects.
viii) That the Complainant was also advised by Mr. Godge prior to registration and prior to the sale certificate being issued that he was to satisfy himself with all aspects of the car and the discounts made as subsequently the same could not be cancelled.
ix) That all the car documents were handed over to the Complainant who got the car registered and insured with a company of his choice. That if the insurance company had erroneously entered the manufacturing year as 2010 it was to be sorted out with them as the Opposite Party no. 2 had no privity to the same. That at the time of delivery the car was in mint condition and did not suffer from any manufacturing defects. That the company documents i.e the sale letter, invoice and Form 20 all showed the correct date of manufacture.
x) That the Complainant was aware from the beginning that the car was one year old and not at the time of taking delivery of the car. That he was aware of the huge discount given because of this fact before purchasing. It is further denied that the car was exposed to the vagaries of nature as it was stocked in the covered garage of the company and the suggestion is contrary to the laws of physics and chemistry. That it did not appear to be a used car and had no manufacturing defects. It is denied that the Complainant took delivery under protest and is entitled to refund or that the car has any manufacturing defects and further submits that it was in mint condition at the time of delivery. That at the time of delivery the Complainant obtained a written note from Mr. Ghodge acknowledging that only one duplicate key had been furnished to him.
xi) That the car was brought in at 7350 kilometers in July 2010 with a complaint that brake/parking/number plate lights were not working, which was attended to and replaced. All problems related to wear and tear caused by rough driving and lack of care that the complaints addressed were attended to, the car thoroughly repaired and returned. However the vehicle had to be kept for a week as there was more repairs than a simple first servicing normally carried out. That all the complaints mentioned could only have taken place or occurred subsequent to July 2010. The car was brought in January 2011 having completed 14,601 kilometers in less than a year and complained of all the problems listed in para 7 which were attended to and sorted out.
xii) That the Complainant had serviced and repaired the vehicle elsewhere. That all the problems including the accident damages suggest and indicate that the said car has been subject to rough use and poor maintenance since purchase.
xiii) It is denied that the car was fully scratched and dented at the time of taking delivery or that the key handed over was dirty or old and the key hole was full of scratches. As also the battery was thoroughly recharged and serviced before delivery. That the hydraulic support for rear boot was broken and not attended to was denied. It is stated that problem with the rear boot was only corrected by fitment of the lock of rear boot within two minutes after the same was pointed out.
xiv) That on 27-07-2010 the problem of the tail light bulb not working was rectified by replacing the same with a bulb of a standard make.
xv) That on every occasion any problems complained of was always attended to and rectified and most of the complaints made are typical of rough use and lack of maintenance of vehicles. It is denied that Teflon tape had been used, that the service was unsatisfactory or that the car sold was defective or used and that there is any deficiency of service as claimed.
3. The Opposite Party no. 1 also filed their written version and have stated therein as under:
i) That the complaint is frivolous, baseless and misconceived that all vehicles dispatched have to first get approval of the ARAI test driven checked and are then sent to the distributors; that it is not possible for a vehicle with the problems as described in para 7 to have passed the mandatory quality checks before leaving the factory; that the allegations made that the vehicle purchased is a defective vehicle having manufacturing defects is not supported by any expert report as provided under section 13(1) of the act and neither is deficiency of service established with any documentary evidence to support the allegations; that the car purchased is a well established product in the market being used by consumers over a period of years; that every car manufactured is subject to the terms and conditions of the warranty.
ii) That as per clause 1of the warranty applicable, the warranty shall be limited for 24 months from the date of sale of the vehicle or 80,000 kms whichever occurs earlier subject to fulfillment of other terms and conditions of the warranty.
iii) That the present complaint is filed after the expiry of the warranty period; that delivery of the vehicle was taken only after the customer was fully satisfied with the condition and performance of the car; that if any car reports for services or for repairs the representation made are recorded in the job card looked into and after attending to the same the finding are recorded by the Service advisor on the backside of the job card aimed at providing necessary feedback of the condition of the car to the customer. The car is also checked by quality inspector and diagnostic expert cum trainer pre and post repairs and the service advisor interfaces with the customer to provide proper job explanation. That it was necessary to provide experts report and has relied on the case of Maruthi Udyog Ltd. Vs Dr. A.S. Narayana Rao & anr,(1(2010) CPJ 19 (NC) where there is necessity of expert evidence to prove the manufacturing defects in the vehicle.
iv) That the vehicle is being used continuously till date and has been used within the warranty period of 24 months showing that it is in absolute roadworthy condition also showing that jobs carried out were minor and running repairs required to be carried out due to regular continuous and extensive use and the Complainant has acknowledged prompt and swift attendance. That clause 9 of the warranty policy clearly excludes liability of the complainant for any damage or loss direct or consequential, resulting from the use of the car and/or from defective materials, workmanship or repairs either to the original or subsequent purchaser or any third party debarring the Complainant from claiming any compensation from the Opposite Party. That the complainant had to implead the distributor who was a necessary party.
v) That onus lies on the Complainant to show what he can be awarded under section 14 for the defect in goods supplied or deficiency of service provided.
vi) The Complainant has neither proved that the car has any manufacturing defect or that there was any deficiency of service and quite to the contrary has withheld from this Forum material information that the vehicle met with an accident and was repaired by another distributor's dealer. That the warranty ceases if the vehicle meets with an accident or misuse thereof.
vii) That the complaint should be dismissed with heavy cost under section 26 for filing a false, frivolous and vexatious complaint and withholding material fact from this Forum that the vehicle met with an accident.
viii) That on every occasion the vehicle when brought to the workshop was attended to. That running repairs and maintenance work was carried out.
vix) That the Complainant did not send any notice dated 05-12-2011 and made up the story to mislead the Forum after the accident. That the complaint be dismissed being false and frivolous.
4. By an application dated 16.10.2012 the Complainant sought to produce two reports one of Mr. R. S. Sukthankar, Surveyor Valuer and Chartered Engineer dated 4.9.2012 and report of Dr. Rennick James Abreu PhD Automobile Engineer UK dated 3.9.2012.
5. The Opposite Parties objected to the production of the said reports, however the Forum was pleased to allow the same.
6. From the job cards it is ascertained that the first servicing was done by the Opposite Party No. 2 on 07.05.2010 when the odometer showed a running of 3737 kilometres and the complaint of the Complainant on the said job card form was that the steering system was hard stiff heavy, gear shifting hard, dash board rattling, fuel flap not opening /closing, door lock problem, door rattling noise. The quality inspector found the door rattling noise and the work of the steering as well as of the gear shifting was done and a door lock replaced.
i. That on 27th July 2010 the servicing was done when the vehicle had run 7350 kilometers. That it was last attended at Manickbag Automobile Pvt. Ltd. on 15.05.2010.
Customers request:- brake, parking, number plate lights not working. Nothing is complained of about the power steering.
ii. On 11th January 2011 the job card shows that the vehicle had run 14601 kilometers, wherein it is also noted that the vehicle was last attended at Manickbag Automobiles Pvt Ltd on 9.11.2010.
The servicing attended to read second free service, steering system hard stiff heavy, Gear shifting hard, Accessory fitment, Uneven gap on bumpers, Fuel flap not opening closing, door lock problem, cab roof lining sagging, accident repairs, battery discharged, windshield wipers not working properly, A/c cooling insufficient, improper image in mirror, squeaking noise form front wheel, door rattling noise, accessory fitment, accessory fitment, Rectified leakages, tightened joints plus check steering jam replace both elastic pads and adjustment done, gear lever knod replaced plus replace slacve cyl and lubricant shifting cable, Accessory fitment.
Handling charges for supplier parts and glove box closing and open hard replace GB cover, replace front bumper plus ck front bumper RHS distorted. Replace fuel flap cable. Adjust doorlink for each door. Door setting done . Cab roof lining RR roof top lining sagging, Roof lining. Accident repairs : sheet metal welding /repair plus scratches and dent on car exterior polishing done battery discharged check output and condition plus check battery weak (checked found ok) Windshield wipers not working properly – replace wiper controller /relay plus replace wiper blades, A/C Cooling insufficient – check a/c system and determine fault plus check a/c stop working after some time (checked and found ok, Improper image in mirror handling charges for supplier parts plus mirror adj lever rubber boot defective - replace rubber. queaking noise from front wheel RR front wheel replace parts each side and check front LHS wheel noisy replace elastic pad. Door rattling noise. Adjust door links for each door plus rattling noise in door - adjust switch locking clip Accessory fitment handling charges for supplier parts plus check extra material - adjust vibration damping material.
Accessory fitment handling charges for supplier parts plus check key not given - ordered new key - delivery date given as 13.1.2011
iii. There is a proforma invoice dated 23.12.2011 where it indicates that the vehicle has run 30053 wherein it is written that the assembly fuel filter, air filter element, oil filter, engine oil, wire mesh filter, fifty gram wheel weight, fifteen gram wheel weight, twenty gm wheel weight, stud , coolant synthetic and brake pad set and thirty gm wheel weight which are all shown as paid. Front hub bearings shown as replaced under warranty.
iv. Third free servicing done at Manickbag on 23-12-2011 - engine oil and filter changed, fuel filters cartridge renew, air filter element renew a/c filter , front wheel alignment, check and adjust washing and vacuuming all shown as against free service. Standard check balance wheel, wheel removed each replaced brake pad (paid) RR front wheel knuckle LH Hub and RR front wheel knuckle / bearing changer LH , remove and install brake disk (each side Hub cone removing all done under warranty.
v. On 27.12.2011 the vehicle had run- 30056 kilometers. From the job card of Manicbag it is seen that the bonnet assembly was replaced, misc plus bonnet D/A. Metallic painting engine hood (bonnet) and City C. Metallic colour painting , rear control panel ( RHLH each)- City C – Misc rear LH quarter panel D/A. Estimated date of delivery is 30.12.2011.
7. From the interrogatories filed by Opposite Party No.2 and to the question as to the reason of the Complainant’s option to purchase Fiat Linea Dynamic Peck instead of Ford Fiesta the Complainant answered that he was aware of the loads of features on Ford Fiesta but he was not aware of any discount on it. He further denies that he has purchased Fiat Linea Dynamic Pack. He further states that he visited the showroom of Opposite Party No. 2 on 14.1.2010 and 25.1.2010. He further states that he contacted Ashish of Mumbai Office but does not remember the date however the reason for contacting was to confirm whether the production of Fiat Linea Dynamic Pack Variant had stopped.
8.We have perused the pleadings, Affidavit-in-evidence, interrogatories/replies filed by both the parties and the written arguments as well as the citations relied on by the Complainant Union of India vs Ibrahim Uddin & Anr. Reported in 2012(5) All MR 462(S.C.)
9. From the pleadings of the parties the issues that arise for consideration in the present matter are as under:-
A. Whether the Complainant proves that the Opposite Party No. 2 committed a fraud on the Complainant by delivering a vehicle manufactured in January 2009 when the Complainant was clearly given to understand that the vehicle was manufactured in December 2009?
B. Whether the complainant proves that the vehicle suffered from manufacturing defect ?
C. Whether the Complainant proves that he is entitled to the replacement of the car or in the alternative to the refund of the sum of rupees seven lakhs three thousand eight hundred and seventy five and to the refund of the sum of rupees forty two thousand along with interest at eighteen per cent from the date of payment upto the date of the refund of the said amounts?
D. Whether the Complainant proves that he is entitled to be compensated for the delivery of a single key of the car?
E. Whether the Opposite Parties prove that the vehicle had met with an accident and consequently the warranty had lapsed ?
10. Dealing with the issue A the Opposite Parties have placed on record the advertisement from the Navhind Times dated 14/01/2010 reads as under:-
'FINALLY AN OFFER AS ADMIRABLE AS THE LINEA benefits upto Rs. 36,000/-.The benefits include first year insurance, extended warranty. Road side assistance for fifty months. Hurry offer valid till 31st January . Fiat Linea Adminiration Guaranteed. SMS’LINEA’ 25616161 or call 1800-209-5556 FOR A TEST DRIVE. For 24X 7 FIAT ROADSIDE ASSISTANCE call 1800-209-3428 www.fiatlinea.in
This offer is applicable only for Linea 2009 Model . Rupees 8000/- to be paid to avail of this offer on Linea 2010 Model ………'
From the said advertisement it is clear that the Opposite Parties were offering for sale Fiat Linea 2009 and Fiat Linea 2010 the booking of the Fiat Linea 2010 would entail payment of Rs.8,000/-.
The order form clearly indicates the following Booking details 'FIAT LINEA ACTIVE (DI) MINIMAL GREY 2009 model. The sale letter issued by the Opposite Party no.2 shows that the vehicle was manufactured in January 2009.The above three documents clearly establish that the representative of the Opposite Party no.2 and the Complainant were referring to a car manufactured in the year 2009. The complainant contends that he was compelled to take delivery of the car since he had already made payments and the car was already registered in his name with the R.T.O. He contends that his accepting the vehicle under protest is found recorded on the delivery note issued to him which is not being produced by the Opposite Party, contending that the same are not traceable in their records. The Complainant wants this Forum to rely on the decision quoted at para 8 above to draw an adverse inference against the Opposite Party no. 2. The Complainant who took the delivery of his vehicle on 04-02-2010 chose not to take up the issue immediately upon delivery of the car and waited for almost two years to raise the said issue along with other complaints. We are not inclined to accept the contention of the Complainant since the Complainant has used the vehicle and chose not to file the complaint at the earliest.
Apart from the allegation of the Complainant, there is nothing on record to lead us to a different conclusion. Therefore the complainant has failed to prove that the Opposite Party no. 2 had committed a fraud on the complainant by delivering a vehicle manufactured in January 2009 when the Complainant was clearly led to believe that the vehicle was manufactured in December 2009 and therefore this issue is answered in the negative.
11. The issues B and C are taken together for the purpose of discussion for the purpose of clear understanding of the law we have decided to transcribe the relevant provisions of the law.
' Section 13(1) of the Consumer Protection Act lays down as under:- Procedure on admission of complaint.-(1)The District Forum shall on admission of a complaint, if it relates to any goods …………………..
c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view of finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum;
12. The reports brought in by the Complainant are first of all vague and do not throw any light as to the reasons why there is hardness of the steering. Neither of the experts contend what tests they have carried out in order to ascertain what the cause of the hardness of the steering was due to and whether the same was the defect in the steering system or due to any other reason. Secondly on the question of the hardness of the gear shifting both the reports do not throw any light as to the reasons of the hardness of the gear shifting and whether such gear shifting could be put in place or not.
As can be seen the reports were prepared in the month of September 2012 when the vehicle was used for over two and a half years.
13. As the reports were prepared after the Opposite Parties filed their written versions, the Complainant ought to have intimated the Opposite Parties at the time of conducting the inspection to permit their engineer to remain present. Moreso neither have affidavits been filed along with the reports to permit any interrogatories to be filed.
14. It is noted from the job cards and the tax invoices brought on record by both parties that the free services as well as paid services have been attended to by the Opposite Party no. 2, as well as by Manickbag Automobiles at Belgaum right from the time of purchase of the vehicle. It was incumbent on the Complainant to have placed on record all the job cards. From the job cards of the servicing done by the opposite party no. 2 it is seen that the hardness of the steering and the gear shift was corrected by Opposite Party No. 2, admittedly the same recurred which the Opposite Parties contend was due to the improper rough handling and lack of maintenance of the vehicle. As can be seen from the documents produced by the Opposite Party No. 2 the vehicle continues to be serviced and attended to by the Opposite Party No. 2 and from the service history copy produced it is noted that the same was being attended to till 28.8.2014 , at which time the odometer reading showed 68,216 Kilometers . Besides the vehicle having completed four and a half years in running condition is indicative that there is no defect in the vehicle and disproves that there is any manufacturing defect.
15. Although the Opposite Parties contend that the vehicle was being run without adhering to the instructions given in the owner’s manual, neither the Complainant nor the Opposite Parties have placed the same on record.
16. The Forum relies on the decision in the Revision Petition No. 4575 of 2010 and Revision Petition No. 4787 of 2012, Krishanpal Singh vs. Tata Motors Limited,and Tata Motors Limited vs. Krishanpal Singh pronounced on 07-05-2014, by the Hon’ble National Commission with regard to a complaint made that the vehicle in question had several defects complained of, the Hon’ble National Commission whilst dealing with the question of 'whether a vehicle had manufacturing defect?' has laid down several principles basing on the decisions of the Apex Court. The issues raised in the said matter and those raised in the present case in hand are identical and have been adjudicated upon by the Hon’ble National Commission Court wherein it is held as under:
11. It was contended that manufacturing defect has been defined by this Commission in Maruthi Vs Hasmukh Lal, (2009) 3 CPJ 229, Para 21, as a defect as a result of which the vehicle cannot function and results in a complete and total breakdown. The manufacturer is liable only in case of manufacturing defect. The complainant has filed service history and Tax Invoices relating to servicing of the vehicle, inter alia, by HIM Motors, besides other Dealers. This Commission, in the following authorities, has observed that, only the Dealer to be liable in cases where no manufacturing defect is established. He has referred to
i) Tata Motors Vs. Hind Motors & P.K Marwaha order dated 24.05.2010. ii) Hind Motors Vs. K.K. Kalsi – order dated 24.05.2010.
iii) Hind Motors Vs. Balwinder Singh, order dated 24.05.2010.
iv) Hind Motors Vs. Bhupinder Singh,order dated 24.05.2010.
12. It was also argued that no findings can be arrived at in the absence of foundation being laid down in the pleadings. The counsel has referred to Supreme Court’s authority report- ed in DVVG Satyanarayana Vs. S.V.Ragha vaiah, AIR 1987 SC 406. It was also contended that, moreover, the vehicle is lying abandoned since the year 2008. The respondent has not cared to take away his vehicle. In order to embolden his arguments, the counsel for the petitioner cited authorities reported in Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractor Ltd. Vs. Ramdas, Telco Vs. Bachi Ram Dangwal and Tata Motors Vs. Ashok Saraf, decided on 12.01.2009.
13. It was also submitted that the vehicle had limited problem of break-failure and starting-failure, at four times. The service history and Tax Invoice filed by the complainant did not show any starting failure, even though, there is a reference to cold starting problem on 07.02.2008. From the service history and tax invoices, it is clear that break jam was returned on 26.12.2006 and 13.12.2007 and not on seven occasions, as wrongly held by the consumer for below. The complainant has distorted the symptom of steering noisy on 04.03.2008 and steering hard on 10.03.2008 by misrepresenting steering jam/fail, which shows how minor maintenance issues have been exaggerated and distorted. The petitioner was willing to replace the gear box as a gesture of goodwill even though the warranty had expired. Numerous visits to the workshop does not amount to manufacturing defect. Onus of proof is always on the complainant to lead cogent evident and expert report. This Commission in Classic Automobiles Vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC) and Tata Motors Vs. Kushal Singh Thakur, vide order dated 21.08.2009 in RP No. 1153 of 2005, held that provisions of Section 13(1) (c) had to be complied with for appointment of Expert who could give a report as to whether the vehicle was suffering from manufacturing defect of the vehicle.
14. It was argued that Expert opinion is a condition precedent for establishing manufacturing defect, as was held by this Commission in EID Parry Vs. Baby Benjamin, I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin, 2008 (II) CPJ 111, Chandreshwar Vs. Telco, I (2007) CPJ 2, Diamond Cement Vs. Rai Prexim India Pvt. Ltd., I (2003) CPJ 1, Lovely Vs. Harmesh Lal, I (2007) CPJ 312.
15. It was further argued that the petitioner/complainant has concealed some material facts. Firstly, the complainant abandoned the vehicle at the workshop. It is lying with the workshop since the year 2008. The complainant was informed vide letters dated 30.07.2008, 04.08.2008, 11.08.2008, 22.08.2008 and 14.09.2008 that the vehicle had been attended to and to take delivery of the same. The petitioner/complainant was also informed telephonically, but he did not come forward to take the vehicle back. On 14.09.2008, the Dealer made a proposal to the complainant, through a letter, for offering of replacement of gear box as a gesture of good will and also offered the reimbursement of Rs.500/- per day, applicable to his previous visits to the workshop, when the vehicle got stranded for more than one day due to major running repairs. The complainant tried to mislead the Forum by not disclosing the fact that he has not taken delivery of the car since the year 2008. The complainant purchased the car on 15.12.2006 and has filed the complaint before the District Forum on 13.01.2009 i.e. beyond the warranty date, i.e., 15.06.2008.
16. It was also argued on behalf of the petitioner that after the warranty period, no right to demand any damages or compensation for loss or inconvenience lies with the consumer. In Bharati Knitting Vs. DHL Courier, (1996) 4 SCC 704, the Hon’ble Supreme Court held that the parties are bound to follow the contract entered into and signed by them. In Maruti Vs. S.K. Gabgotra, (2006) 4 SCC 644, the Hon’ble Apex Court set aside the order of replacement of vehicle. This order was followed by this Commission.
17. The vehicle in question has covered 36,000 kms and one-and-a-half years have elapsed. Consequently, the question of manufacturing defect cannot arise in view of Telco Ltd. Vs. Gajanan Mandrekar, AIR 1997 SC 2774 and Tata Motors Vs. Kushal Singh Thakur (supra). Both the fora below have wrongly concluded that the vehicle was having manufacturing defect. The complainant had not availed the second free service and waited for two years to file the complaint after covering 40,000 kms. The complainant failed to show having suffered any loss or injury on account of negligence by the petitioner. As per the Hon’ble Supreme Court’s authority, reported in Consumer Unity & Trust Society Vs. Chairman & Managing Director, Bank of Baroda, (1995) 2 SCC 150 and Union of India Vs. Seppo Rally, (1999) 8 SCC 357 , Godfrey Philips Vs. Ajay Kumar (3) 2006 CPJ 178 (NC) and Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65.
18. The learned counsel for the petitioner contended that the complainant had exaggerated the number of visits for repairing purposes. According to the petitioner,the complainant did not visit the premises for about 53 times and at another stage for about 35 times. However, the counsel for the petitioner admitted at Bar that the complainant visited for 26 times, for which the petitioner is ready to compensate @ Rs.550/- per visit.
19. We find force in the arguments canvassed by the counsel for Tata Motors Ltd. The jobcards, Annexure P-1 (colly) are attached with the file. It goes to show that there was brake jam after 10 kms., low pick up, defect in regulator handle checkup and steering wheel was found to be centralized. Service card still reveals that 'brake and starting fail, B1 brake grabbling/jam, replace brake pad (paid), brake cleaning, Misc., N, cooling, a/c cooling low check down'. Another history card shows that 'steering noisy, noise from Engine, steering system hard. There are number of job cards'. All these facts clearly go to show that the complainant visited the Service Station, time and again, for the rectification of above said defects. The complainant claimed that he visited the Service Station for 53 times. The opposite party has denied this fact but admitted that he must have gone for getting the service and defects removed, for as many as 26 occasions. The admission of the facts comes out from the horse’s mouth itself. The opposite party, Tata Motors Limited issued a letter dated 11.8.2008 to the complainant, wherein the relevant extract runs, as follows:
We sincerely regret the inconvenience that you had to go through. However please be assured of the quality of jobs that have been carried out by our dealer. As we are concerned on the performance of your car, and accordingly we have got the car checked by our representative as well. We once again would request you to please take the delivery of the car and be assured of the best possible support from us in the future.
Vide letter dated 14.09.2008, issued by HIM Motors (P) Ltd, to the complainant, it is apparent that the petitioner has replaced the Gear Box and Fuel Injection Pump, etc.
20. Dr.Vijendra Mahnidyan, learned counsel for Sh. Krishnan Pal Singh, the complainant, has argued that the life of the complainant and his family was put in danger. The opposite parties made repeatedly fake assurances after each repair to the effect that the vehicle would run smoothly thereafter. How- ever, the defects could not be cured. The vehicle remained in the garage of the opposite party whereas the complainant had to pay the installments of car loan as well as the interest thereon. The complainant, vide his letter dated 05.08.2008, which letter runs into five pages, made the following request to the opposite parties, addressing one Mr. Rajiv Dubey, (President-Vehicles), Tata Motors Limited, Mumbai. The relevant extract germane to this controversy, runs as follows:
'Sir, when a person buys a car, he makes sure that he will benefit from the car in terms of physical exertion, relaxing, mental peace, business and this car would help him to expand business and bring growth to lives but buying this car from Tata motors, I have been losing my mental peace and faced financial loss and now it’s nearly unbearable and I request you to fulfill my loss (mental and financial), else I will have to go to court and media.
Hence, I again kindly request you to understand my unbearable problem as a quite high post officer, who is working for big multinational company and oblige you’re your efforts will be highly appreciated'.
21. He wrote another letter dated 20.08.2008. In both these letters, the complainant discussed the defects prevalent in the car. In the end of this letter, he requested the opposite parties to refund the amount paid by him to Tata Motors and also to repay the cost for spending the money on the additional car accessories.
22. According to the complainant, the OP had tried to settle the matter. The document was prepared by the opposite parties, as a condition precedent to be signed by the complainant before taking delivery of the vehicle.
23. The learned counsel for the complainant has cited an authority reported in Tata Motors Limited. Vs. Lachia Setty I (2008) CPJ 151 (NC), wherein the opposite parties could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to workshop, this Commission held that deficiency in service stood proved. In that case, it was held that the complainant after being fed up with the defects, surrendered the vehicle within three months of purchase. The order passed by the fora below to replace the car or pay the cost of the car was upheld. It was argued that in the judgments relied upon by the petitioner in Sushila Automobiles Private Limited through its Manager Shri Kamlesh Kumar Singh vs. Dr.Birendra Narain Prasad, Revision Petition No. 1652 of 2006 decided on 7.5.2010 1652 of 2006 and Classic Automobiles vs. Lila Nand Mishra & Anr. I (2010) CPJ 235 (NC), there were only minor defects.
24. It must be borne in mind that the car is lying with the opposite party/ dealer since the year 2008. A number of requests, either in writing or in oral, were made to the complainant to take the car back. The contention of the complainant that he had written two letters, dated 5.8.2008, and 20.8.2008, does not absolve him from his liability to take the car back.
25. On the other hand, the case of the opposite party also smacks of negligence when the car was having so much problem. The Manager should have issued a letter that the vehicle was roadworthy. However needful was not done .It appears to be a case of contributory negligence. If the assurance was given by the opposite parties to the complainant, then he could have taken his car back, with confidence.
26. This must be borne in mind that this is a peculiar case and where the complainant had to visit the service station, according to him, for 53 times and according to the opposite party, for 26 times. Normally, in such like situation, the onus of proof should be shifted to the side of the OP when the manufacturing defects are visible on its face and the OP has no explanation to make, the manufacturing defect, ‘must be assumed’. Section 13(1)(c ) is wee bit unfavourable to the consumer. The consumer is a poor fellow. He cannot be equated with OP1. Whenever there is a complaint of manufacturing defect it should be the bounden duty of the people, like OPs, to appoint their own Experts who are always available at their back and call to prove that the car does not suffer from any manufacturing defect. The General Manager of Tata Motors should certify that the vehicle is road-worthy and it will not endanger the life of the complainant or his family members.
27. However, we are bound by the law laid down by the Hon’ble Apex Court in several authorities, cited by the counsel for the petitioner/Tata Motors. The car can neither be replaced nor can its amount be refunded. Keeping in view these facts and circumstances, we hereby modify the order passed by the State Commission and hereby order that no refund be made as already ordered by the District Forum and the State Commission. It is hereby ordered that the vehicle which is lying with HIM Motors Pvt. Ltd.,OP2, shall be repaired and the General Manager of Tata Motors will issue a certificate to the effect that the car is roadworthy and it will not endanger the lives of the complainant and his family members. The roadworthy car be handed over to the complainant/ consumer, within a period of 30 days from the receipt of this order. Thereafter, the warranty period shall stand extended by 12 months. This will be one of the conditions on the warranty card issued to the complainant.
28. This is an admitted fact that the complainant visited the service station for 26 times. He will get compensation in the sum of Rs.5,000/- per visit, total being, Rs.1,30,000/-, payable within 30 days from the receipt of this order. The complainant will also get litigation charges and costs of this case, including the Advocate’s fee, in the sum of Rs.50,000/-, within a period of 30 days from the date of receipt of this order. Order shall be complied with accordingly. Otherwise, the said amounts will carry interest @ 9% p.a., after 30 days, till their realization, against both the OPs, jointly and severally.
29. If the car is not repaired within the above said period of 30 days, both the OPs will have to pay penalty in the sum of Rs.500/- per day, jointly and severally, till the complainant gets the poss
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ession of the same. The car should be handed over, without any defect. 30. Before concluding, we must mention that although, the District Forums are quick in passing the orders in favour of the consumers, irrespective of the fact, whether the case of the complainant is bolstered by cogent and plausible evidence, or not, yet the said forums never take the trouble to adhere to Section 13(1)(c) of the Consumer Protection Act. If District Forums follow the law, most of the problems will come to an end. If the consumer is to be helped permanently, the provisions enshrined in Section 13(1)(c) should be followed, strictly. In that event, it would be easier for the fora to winnow truth from falsehood. The revision petitions stand disposed of.' In view of the above we hold that the issues B and C are answered in the negative. 17. with regard to the issue D. The Parties are not at issue with respect to the fact that at the time of delivery of the car only one key was given and the second key was not given. It is the case of the Complainant that even the key that was given was not new key and was of a different variant foldable key having remote locking system and that the main keyhole was very old and full of scratches. The Complainant drove the car with the key that was given to him and therefore the contention that the key was not the proper one does not hold any water. There is a letter on record dated 04-02-2010, addressed by the Opposite Party no.2, at the time of taking delivery of the car, which is addressed to the Complainant stating that the duplicate key had to be done during the first service. From the job card dated 1st January 2011 it is seen as against accessory fitment 980019 ‘handling charges for suppliers parts + check key not given ordered new key. Besides apart from other mails, there is a mail dated 2nd February 2011 sent by one Anup Chafedkar stating that the key code card had arrived and they were awaiting the vehicle to be brought so as to pair the new keys with the car. However from the record it is not ascertained whether such key was subsequently given or not. The Complainant however does not make out a case as to what was the damage caused to him consequent to the non delivery of the duplicate key. It would be binding on the Opposite Parties to provide him with the second key, if not so provided. 18. Addressing issue E. The Opposite Parties have placed on record a job card with respect to works carried out on the said vehicle undertaken with Manickbag Automobiles at Belgaum dated 27-12 2011 which speaks of accidental repairs. Similarly from the second job card dated 11th January 2011 apart of the various works carried out also include accident repairs 980016 : sheet metal welding /repair + scratches and dent on car (exterior polishing done), the Complainant has not stated in his complaint about the said accident. Infact the Opposite Parties have categorically stated that the vehicle had met with an accident and that the vehicle was repaired with another dealer and further that the Complainant had withheld material facts from this Forum with regard to the same. They have further stated that the warranty of the vehicle ceases upon the vehicle meeting with an accident or misuse thereof. In view of these submissions made and in view of the Job card of Mancibag Automobiles dated 27-12-2011 produced, and the job card dated 11-1-2011 of the Opposite Party no.2 and in view of the complaint of distortions of parts of the body of the vehicle, one finds it probable that the said vehicle had met with an accident. 19. Although the Opposite Parties have categorically asserted that the vehicle had met with an accident, they have nowhere set out what were the damages that the vehicle had suffered consequent to the accident. The Opposite Parties have contended that the warranty remains in force for twenty four months from the date of the sale or eighty thousand kilometers whichever is earlier, with a clear proviso that the said warranty shall ceases in the event from the time the same meets with an accident or misuse thereof. It was the duty of the Complainant to summon and examine the personnel from Manicbag Automobiles in order to disprove the job card. 20. The non disclosure by the Complainant about the car meeting with the accidents casts a shadow on the veracity of the facts alleged by the Complainant more so when he himself alleges distortion of the bumper etcetera which complaint did not exist earlier as can be seen from the earlier job cards. It is however not material to deliberate on the issue on the accident since the Opposite Parties have under the terms of the warranty discharged their duty under the warranty. In view of what is stated above the complaint is dismissed .The Opposite Parties are to provide the Complainant with the second key, if not so provided.