F.A.No.453  OF 2013 AGAINST C.C.NO.348 OF 2011 DISTRICT FORUM WARANGAL

Between:

Fiat India Automobiles

MIDC, Dist: Pune-412210, Rep. by its Authorized Signatory.

                                                        Appellant/opposite partyno.1

1.   Pendli

Aged

R/o H.No.1-8-134. Hanamkonda. Presently residing at

H.No.1-7-1119, Advocates Colony,

Hanamkonda, Warangal District.   

Respondent/Complainant

2.   Autofin Limited, Secunderabad, Rep. by its Managing Partner

at Sy.No.33, Near

Next to

Bowenpally, Secunderabad – 500011.

3.   Select Motors, H.No.15-1-315,

Sri Vishnu

Mulugu Road, Warangal.

Rep. by its Manager.

                                        Respondents/opposite

Counsel for the Appellant              M/s

Counsel for the Respondent           M/s  

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

&

S.BHUJANGA RAO, HON’BLE MEMBER

                THURSDAY THE TWENTY FIRST DAY OF NOVEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             The manufacturer of Fiat car bearing registration number AP 098Q 2928  which is the first opposite party in the complaint before the District Forum has challenged the order of the District Forum by way of filing the present appeal.   vendor of the first respondent, Y.     purchased the car on 02-07-2008 for consideration of `4,48,340/- from the  second respondent who is the dealer of the appellant company and the first respondent purchased the car from

 2.            The first respondent submitted that he observed defects in the workmanship of the car with clutch and gear box which were rectified by the respondent no.2 on 3.12.2009. As the problems persisted, the first respondent had taken the car on the advice of the appellant-company to its newly appointed dealer, viz.

 3.            The first respondent submitted that as the problem persisted, the first respondent had sent email on 23.05.2011and the appellant assured to get the problem rectified as also the appellant had given evasive reply by sending email on 30.05.2011 and 3.05.2011 with an intention to evade its liability. He has sought for relief for replacement of the car or alternatively for cost of the car and an amount of `18,500/- towards repairing charges as also an amount of `1

4.             The first respondent filed the complaint contending that the second respondent and third respondent are not its agents and they share principal to principal relationship.  It is contended that the there is no manufacturing in the car and that the warranty on the vehicle was furnished for a period of 18 months and the warranty period was expired on 2.07.2008.

 5.         It is contended that the first respondent had taken the vehicle on 29.03.2011 to the workshop of the third respondent and the third respondent attended to the problems, replaced3rd and 4^th gear assembly and main shaft and after conducting test drive in presence of the first respondent, delivered the car to the first respondent. After running 600

6.             The second respondent resisted the claim on the premise that it sold the car to   The second respondent has submitted that there were no troubles the car posed by the time the first respondent purchased it from its previous owner. It is contended that there were no manufacturing defects in the car. The first respondent filed the complaint in order to get a new car. The second respondent prayed for dismissal of the complaint.

7.             The third respondent contended that it is local dealer and service centre of the appellant at Warangal and it is not aware of the purchase of the car by the first respondent. It is contended that the first respondent brought the car to the third respondent on 29.03.2011 with complaints, “”R/R 5^TH Gear cover (end cover), Oil   and the respondent no.3 after informing the first respondent that the repair would require more time, attended to the problems and returned the car to the first respondent. Again on 16.05.2011 the first respondent handed over the car to the third respondent with complaint of Starter Check on 16.05.2011 and he did not report any earlier complaint.

 8.            The respondent no.1 filed his affidavit and the documents, Exs.A1 to A14.  On behalf of the appellant and the   During pendency of the appeal, the appellant filed FAIA No.2528 of 2013 to receive documents and the same was allowed and the documents have been marked Exs.B4 to B8.

 9.            The District Forum allowed the complaint on the premise that the respondent no.3 could not repair the vehicle on account of the problem with the engine of the car. The District Forum observed that it is the duty of the respondents no.2 and 3 and the appellant to rectify the defects which occurred within the warranty period. The District Forum held that there is deficiency in service on the part of the appellant and the respondent no.2 and 3 for not repairing the defects of the vehicle though there are manufacturing defects in the vehicle.

10.            Feeling aggrieved by the order of the District Forum, the first opposite party filed the appeal contending that the vehicle did not have any manufacturing defect. The District Forum erred in holding that the burden lies upon the appellant to prove a negative fact. The vehicle became defective on 30-11-2006 and met with an accident on 6-12-2006 and that the first respondent admitted in the job card about the accident. The first respondent has been using the vehicle without any difficulty or obstruction. The procedure prescribed under Section 13 of the Consumers Protection Act is not followed in respect of obtaining the expert’s report from the proprietor, Tata Bellary.

11.            The point for consideration is whether the order of the District Forum suffers from

12.                The first respondent purchasing the Fiat Car manufactured by the   appellant and sold by the second respondent on 25.11.2009 for consideration of `4,48.340/- is not disputed.  The first respondent stated that since the date of purchase the vehicle posed some problem or other with clutch and gear box.   The first respondent had stated that the vehicle posed continuous trouble in respect of movement of clutch pedal and gear box and he mentioned the  in the job slips Ex.A6 and email Ex.A8

13.            The first respondent in his email under Ex.A8 brought to the notice of the appellant company that the car ran 35000   The appellant by its reply sent through email Ex.A9 informed the first respondent that it had instructed its regional office to provide all necessary support for resolving the issues. 

14.            The first respondent had sent another email Ex.A10 complaining of resolving clutch problem unsatisfactorily and failure of the second respondent to supply necessary spare parts of the vehicle.  The email reads as under:

You can also find the previous show room job sheet, i.e. auto fin Secunderabad where the clutch problem unsatisfactorily they gave the vehicle by clearly mentioning in the job problem is till persisting.  Is it the general practice for the company itself promoting this tradition by not supplying the necessary spares in time.  Ultimately we are   I as a beloved customer of that feel disgusted situation. 

15.            The first respondent has got inspected the vehicle by customer support of Tata Motors who after inspecting the vehicle had sent the following email (Ex.A11)

Further to your complaint we have inspected your vehicle   complaint to lack of oil circulation.  The oil starvation is caused due to the underbody damage on oil sump.

I have personally inspected your vehicle during my visit to workshop on 24/05/2011 huge dent on oil sump lower part.

During the earlier complaint of gear box after attending the complaint the vehicle was to you on 09/05/2011 at 34044 At the time of delivery you have   However the vehicle Break down 16/05/2011 at 3493 As the complaint occurred due to external damage the repairs cannot be covered under warranty. 

16.            The learned counsel for the appellant would contend that the first respondent has fabricated document in order to make   the appellant company liable  meet the expenses for repair of the car which developed the problem beyond the period of warranty.  The learned counsel for the respondent no.1 has submitted that the appellant company in its written version has categorically admitted that it was within its knowledge that the ownership of the car was transferred in the name of the first respondent and it instructed its regional office to look into the complaint made by the first respondent. 

17.            A perusal of the service history of the car mentioned in the documents Ex.B2 goes to show that the first respondent reported the following complaints:

        r/r input shaft bearings, 3^rd gear slipping            

18.            The following replacement of the spare parts of the car during the process of repair has been made:

 Replace front bumper, metallic colour painting: front bumper

Miscellaneous, show grill, miscellaneous painting

Miscellaneous body wash, replace instrument cluster,

Replace bonnet stay rod etc 

19.            Ex.B2 indicates repetition of certain complaints as regards to functioning of clutch assembly.

20.            A overall perusal of the documents placed on record establish that the vehicle posed some problem or the other and the respondent no.2 and 3 attended to the problems, however, not to the satisfaction of the first respondent as such this Commission finds substance in the contention of the first respondent that the vehicle posed some problem.  However, posing some problem by the vehicle does not mean that the vehicle is inherently defective and need to be replaced with a new vehicle.

21.            This Commission in “Sri  

22.              where the motor cycle purchased by the complainant posed repeated problems such as noise while the vehicle is operated in second gear and generation of severe heat in the engine, silencer and brake pedal within 15 minutes of the vehicle put in motion. The service engineer conducted test drive after replacing spindle gear shifter, spring gear shit drum and compound shift stopper It was found that there was no manufacturing defect in the vehicle. It was held:

“Even in the case of manufacturing defect of a vehicle, the vehicle in   In another case, the  

In view of the aforesaid discussion and in the light of the judgment of the  

23.            In “  of the order as follows:

“The first appellant during the first servicing of the vehicle replaced parts charging Rs.1079/- and waived the amount as goodwill gesture.  The warranty terms mentioned in the manual cover certain parts of the vehicle subject to proper use and correct handling of the vehicle with exception to normal wear and tear of the components.  The warranty will not apply in the following circumstances:

1.      If all free services/paid services/oil top-ups are not availed from the authorized Hero Honda workshops.  As per their recommended schedule.

2.      If Hero Honda recommended engine oil SAE-10W 30 SJ Grade (JASO MA) is not used.

3.      To normal wear and tear components including but not limited to) brake shows, clutch shoes, bulbs, electrical wiring, filter, spark plug, fasteners, shims, washer, oil seals, gaskets, rubber parts, bush rubber bellows, plastic parts breakage and wheel rim for misalignment bend.

4.      If additional wheel(s) is are fitted and/or any other modification carried out/accessories fitted other than the ones recommended by Hero Honda

5.      If Super

6.      To any damage on motorcycle’s painted surface cropping due to industrial pollution or other external factors.

7.      For normal phenomenon like noise, vibration, oil seepage etc., which do not affect the performance of the 8.      To any damage caused due to usage of improper oil/grease, non-genuine parts.

9.      If any defect crops or repairs needed as a result

10.  If any maintenance/repairs required due to bad road conditions or misuses of Super

11.  If any defect crops or repairs needed as a result of Super

12.  For consumables like oil, grease, gasket etc., to be used during free services and/or warranty repairs 

13.  To any part of Super

14.  For Super

16.   In terms of “warranty” it is mandatory for the first respondent to avail all the free services as per the recommended schedule.  Any defect observed in the motorcycle during the period of warranty and the part considered to be the cause of the defect, the second appellant’s obligation is restricted to repair or replace such part subject to the condition that such defect is not resulted due to improper driving or  misuse of the vehicle”

 24.          As there were no manufacturing defect found in the vehicle or established by the first respondent,  it goes without saying that the service rendered by the respondent nos.2 and 3 do not meet the standard requirement meant therefor.       The first respondent sought for replacement of the car and the District Forum has   found   manufacturing defect in the vehicle not based on any evidence.   The District Forum ought to have directed the respondents to check the car and attend to the problems by charging 50% the amount required therefor from the first respondent.    As such the order of the District Forum is required to be modified in     The first respondent has also cannot claim the repair or replacement of the vehicle as the vehicle does   suffered any manufacturing defect.  The order of the District   in regard to relief of compensation, repairing chares and costs is liable to be set aside. 

 25.          In the result, the appeal is allowed modifying the order of the District Forum.  The appellant and the respondents no.2 and 3 are directed to check and repair the car bearing registration   There shall be no order as to costs.   

                                                                                                                                             I/C PRESIDENT

                                                                                                                                                   MEMBER

                                                                    Dt.21.11.2013

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