S/o Ramaiah, aged 41 years,
Bodawada Mandagunta Post,
Parchur Mandal, Prakasam Dist. ... Complainant.
1. The Managing Director,Vs.
TATA Motors, 2nd Floor,
Surya Towers, ‘C’ Block,
104, S.P. Road, Secunderabad.
2. The Manager,
Jasper Industries Private Limited,
TATA Motors, Benz Circle, Vijayawada.
3. The Manager,
Kurnool Road, Ongole. …Opposite parties.
COUNSEL FOR COMPLAINANT: SRI B. LAKSHMI NARAYANA RAO,
COUNSEL FOR OPPOSITE PARTY NO.1&2: SRI A. RADHA KRISHNA MURTHY,
COUNSEL FOR OPPOSITE PARTY NO.3: NONE.
This complaint is coming on 25.02.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite parties to replace the vehicle bearing No.AP 27/R 2255 Tata Indigo CS.LS with new vehicle and to pay Rs.50,000/- towards insurance, registration expenses and Rs.1,500/- per each day of stoppage and Rs.1,00,000/- towards mental agony and costs of the litigation.
2. The averments in the complaint are as follows: The complainant is a Class-III Contractor, having his business office at Main Road, Addanki in Prakasam District. The first opposite party is the manufacturer of TATA Motors i.e., Tata Indigo CS.LS. and the 2nd opposite party is the authorized dealer. The complainant with a view to purchase Tata Indigo CS.LS car placed an order with the 2nd opposite party on 30th May, 2008 by paying an advance of Rs.5,000/- @ Rs.4,35,240/-. The opposite parties informed that car was ready for delivery and demanded excess amount of Rs.5,000/- as price variation. Accordingly on 18.06.2008 the complainant paid cash of Rs.69,799/- and the remaining balance of Rs.3,70,000/- was financed by Mahindra & Mahindra Finance, Ongole. On 19.06.2008 the 2nd opposite party delivered the vehicle at the business place of the complainant. Since from the date of the first service itself, the complainant is complaining unusual noise from the bottom of the vehicle. For the first two or three times, 2nd opposite party did not note down the complaint and the simply stated they will rectify it as the noise is coming from the seat.
Though the seats are adjusted, the noise is not rectified. Subsequently the noise become unbearable and the vehicle was handed over to the 2nd opposite party at their Guntur show room on 23.08.2008. At Guntur they noticed that the noise is coming from the bottom side as the joint between the rear floor and front floor got disturbed and the noise is coming from this joint. Since the 2nd opposite party did not choose to answer the grievances of the complainant and kept the vehicle with them. For each day, the complainant is constrained to take a rented vehicle at Rs.1,500/- per day. At the first instance, the 2nd opposite party addressed a letter to the 1st opposite party requesting to replace the vehicle. Thereafter inspite of many reminders, the opposite parties fail to solve the problem and so the complainant is constrained to issue legal notice to the opposite parties on 11.09.2008. The 2nd opposite party gave a reply with false allegations on 22.09.2008 stating that as per the warranty, the parts which are beyond repairs can be only be replaced and if it can be repaired, it shall have to be repaired. Such warranty condition is not there. As per the warranty conditions, their obligation is to repair or replace free of charge such parts of the car which in their opinion are defective and the parts so replaced by the company under warranty shall be their property.
The problem in this case is a manufacturing defect and cannot be repaired except by replacing with a new car. At the initial stage, the 2nd opposite party had promised to replace it with a new car, but started bad litigation as if the complainant is not co-operating with the opposite parties. The complainant had incurred around Rs.50,000/- insurance, registration, taxation etc. The complainant is also constrained to pay the loan installments without enjoying the car. There is negligence and deficiency in service on the part of the opposite parties. Hence, the complaint.
3. The petition against the 3rd party was dismissed on 01.12.2008 as not pressed by the complainant.
4. The opposite parties 1 & 2 filed their counter contending as fallows: The present complaint before the Consumer Forum at Ongole is not maintainable as the transaction of purchasing of vehicle took place at Vijayawada and delivered at Guntur. As per condition No.14 of the purchase order “Court at Vijayawada only will have jurisdiction on any dispute that may arise”. As such this Forum has no jurisdiction to entertain the present complaint as no part of cause of action arose with in the jurisdiction of this Forum and the complaint is liable to be dismissed on this ground. Alleged defect in the vehicle is absolutely repairable and the opposite party is always ready to repair the said defect. The defect is not a manufacturing one, and therefore the question of replacing with new vehicle does not arise. The complainant with evil intention and ulterior motive left the vehicle at the opposite parties auto garage. Inspite of letters addressed to the complainant on 10.09.2008 requesting him to attend and rectify the defect in the vehicle as per company norms, he has not responded. The complainant fail to attend the 1st service of the vehicle which is mandatory as per norms, at Guntur or Vijayawada work shop. The complainant came to Guntur work shop for the 1st instance with a complaint of A.C. water leaking at 2548 K.Ms.
The complainant brought the vehicle to the work shop at Guntur at 5112 K.Ms. with complaint on tyres and the same was rectified. The Assistant General Manager of service addressed to a letter stating that the alleged defects in the vehicle is only minor and minute and it will be repaired as per the company policy. But the complainant suppressing the same and issued a lawyer notice through his counsel. The opposite parties sent suitable reply to the said notice stating that the defect is repairable and will be attended to the highest standards. The allegation that the problem in the vehicle is a manufacturing defect and it cannot be repaired, except replacing with a new car is false. The 2nd opposite party never promised to replace the vehicle with a new vehicle. The complainant is not entitled for replacement with new vehicle since the alleged defect is from minor and it is not a manufacturing defect. For the foregoing reasons the opposite parties prays the forum to dismiss the complaint with costs.
5. On behalf of the complainant Exs.A1 to Ex.A8 were marked. The Ex.A1 is the Copy of Terms and Conditions. Ex.A2 is the Tax Receipt. Ex.A3 is the Reply notice of O.P.2. Ex.A4 is the Office copy of lawyer notice. Ex.A5 is the Postal Acknowledgements of O.Ps.1&2. Ex.A6 is the Photo showing the defects in body of car issued by OP2. Ex.A7 is the Letter addressed by O.P.2 to O.P.1. Ex.A8 is the Sales Invoice dated 18.06.2008 issued by O.P.2.
6. On behalf of the opposite parties Exs.B1 to Ex.B10 were marked. Ex.B1 is the Purchase order form. Ex.B2 is the Sales Invoice. Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant. Ex.B4 is the Security Book. Ex.B5 is the Job Card dated 01.07.2008. Ex.B6 is the Job Card dated 25.07.2008. Ex.B7 is the Job Card dated 23.08.2008. Ex.B8 is the Job Card dated 28.08.2008. Ex.B9 is the Letter dated 10.09.2008 to the Kolla Naga Babu, Biodavad Manda Gunta, Parchuru Mandal, Prakasam District. Ex.B10 is the Debit Note dated 18.06.2008.
7. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.
8. The issue relating to jurisdiction raised by the opposite parties was already answered in the order dated 19.01.2009.
9. It is an admitted case that the complainant purchased Tata Indigo CS.LS model vehicle from the 2nd opposite party who is the authorized dealer of Tata Motors after availing finance from Mahindra & Mahindra Finance, Ongole for Rs.4,35,240/-. The vehicle was delivered to the complainant on 19.06.2008. Ex.B1 is the purchase order form and Ex.B2 is the sales invoice and Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant.
10. The grievance of the complainant is that since day one there was unusual noise from the bottom of the vehicle and subsequently the said noise became unbearable. According to the complainant it is due to the manufacturing defects in the vehicle and therefore he handed over the vehicle to the work shop at Guntur on 23.08.2008 and ever since the vehicle is in the work shop. The complainant is not willing to take back the defective vehicle and his is insisting to replace the vehicle with new vehicle.
11. The learned counsel for the opposite parties argued that manufacturing defect is not defined anywhere and only an auto mobile expert can say whether such defect is manufacturing defect. If any expert says that it is a manufacturing defect manufacturer has no other go except the replace the vehicle. He further argued that the burden is upon the complainant to prove that there is manufacturing defect in the vehicle, but the complainant fail to prove the same. He further argued that if the vehicle is not repairable then only the question of replacement of the vehicle arise. In the present case the defect is minor and the same is repairable and the opposite parties are ready to repair the vehicle. Since, the defect pointed out by the complainant is not a manufacturing defect and when it is repairable opposite parties are not liable to replace the vehicle with new vehicle and the complaint is liable to be dismissed.
12. It is not in dispute that the vehicle was delivered to the complainant on 19.06.2008. As per the Job Card Ex.B5 dated 01.07.2008 within two weeks the vehicle was taken to the work shop complaining water leakage from A.C. As per Ex.B6 Job Card dated 25.07.2008 the vehicle was taken to the work shop for plastic component Welding/Repairs/Painting – Tube joint air leak. As per Ex.B7 Job Card the vehicle was again taken to the work shop on 23.08.2008 complaining body sound it means within two months after the vehicle covered 7906 K.Ms. the complainant notice sound from the body of the vehicle. As per Ex.B8 Job Card dated 28.08.2008 the vehicle was again taken to the work shop with same complaint i.e., Under Carriage Noise + Bottom Noise and the vehicle was left at the work shop and not taken back by the complainant.
13. 2nd opposite party contended that there was no manufacturing defect at all. According to the 2nd opposite party the noise and the sound is due to non welding of bottom plates at the place of joint and it can be welded. The defect is minor and it can be rectified by welding the joints and they are ready to do it. But the complainant is not cooperating and has not given his concerned to attend to the repair work.
14. The learned counsel for the complainant argued that it is not the case of the opposite parties that the vehicle was used roughly or negligently by the complainant. It is a clear case of manufacturing defects in the vehicle. He further argued that total body of the vehicle is defective and it is not that a part of the vehicle is defective. So, that it cannot be replaced with a new part. Since, there is manufacturing defect in the vehicle 1st opposite party being the manufacturer and the 2nd opposite party is being the dealer are liable to replace the vehicle with new one.
15. The dealer is saying that the defect can be rectified by welding the joint. The grievance of the complainant is that if a new vehicle is subjected to welding and repairs it may loose resale value and the prospective buyers may suspect about the quality of the vehicle.
16. The complainant is relying on the letter Ex.A7 written by the dealer to the Senior Mechanic in Tata Motors. The learned counsel for the opposite parties argued that as a dealer the 2nd opposite party informed the manufacturer about the un happiness expressed by the customer and it is only internal correspondence between the dealer and the manufacturer and it is not binding on the manufacturer. What ever it may be the dealer admitted that they wrote the letter to Mr. Sunil Reddy, Senior Mechanic in Tata Motors. In their letter the dealer informed Mr. Sunil Reddy, that un usual noise is coming from the bottom side of the vehicle and on investigation they found that the joint between the rear floor and front got disturbed and noise is coming from this joint and sought for his advise. Ex.A6 is the photo showing from where noise is coming. Ex.A7 is the letter. We do not know what advise the Senior Mechanic has given to the dealer to rectify the defect. Certainly he might have given some reply. it is not before the forum and it is suppressed if it is produced it would be helpful to know whether the defect is repairable or not.
17. No one can deny that the very purpose of purchasing a new car is to have a safe and comfortable journey. The main grievance of the complainant is that there is unusual noise/sound is coming from the floor of the car. No person while traveling in a car would like to hear unusual sound. Unless there is a defect in the new car no person would come forward to surrender the vehicle within a short period of two months. The complainant having fed up with the unbearable noise in the car surrendered the vehicle. I agree with the dealer that manufacturing defects are such would cannot be repaired and removed easily and in the present case the defect can be rectified by welding the joint. But we should not forget that if a new car is subjected to welding and if any patch work is done it may loose resale value and the complainant may not wholly satisfy with it. For these advanced type of vehicles there won’t be any chasis on which floor could be resting.
The body is a moulded one. So, unless bottom floor of the vehicle is strong enough to with stand the weight of the body owner cannot feel safe to travel in the vehicle. Even if joint is welded as suggested by the dealer there is no guarantee that it may not come out again and with stand weight as there is defect in the bottom body of the vehicle. I agree with the dealer that there are no defects in the engine of the vehicle. The defect was in the bottom body of the vehicle. So, defective body can be replaced and not the vehicle.
18. Considering the evidence on record and on hearing both sides I am of the opinion that instead of ordering for the replacement of the vehicle O.Ps. 1 & 2 can be directed to replace the body of the vehicle with new one.
19. The complainant further contended that since the dealer did not choose to answer his grievance and kept the vehicle with it for each day he is constrained to take a rented vehicle @ Rs.1,500/- per day and claiming the same from the dealer. But the complainant is fail to produced any evidence to show that he was used a rental car. Therefore, I am of the opinion that he is not entitled to claim any amount under this head.
20. In the result, petition is allowed and the opposite parties 1 and 2 are directed to replace the body of the vehicle with new one and hand over defect less vehicle to the complainant within One month from the date of order and also to pay Rs.20,000/- as compensation towards mental agony and Rs.2,000/- towards costs of the litigation.