Delhi

StateCommission

A/07/751

TATA MOTORS LTD. - Complainant(s)

Versus

Sh. Ashwani Setia, - Opp.Party(s)

14 May 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:14.05.2019

                                                                                                              

                                                                   Date of decision:20.05.2019

 

First Appeal No.751/2007

 

IN THE MATTER OF

 

Tata Motors Ltd.,

Unit No. 305, Signature Tower,

Tower-B, 2^nd floor,

South City-I, NH-8,

Gurgaon, Haryana ….Appellant

 

VERSUS

 

Sh. Ashwani Setia,

186, Karishma Apartments,

27, I.P. Extn.,

Delhi-110091

 

Him Motors Pvt. Ltd.,

Plot No. 338,

Patparganj Indl. Area,

Delhi-110092                                                                     ….Respondents

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Deepak Joshi and Sh. Ashok Mishra, Counsel for the appellant

                   Sh. Vivek Kumar, Proxy Counsel for the R.K. Sahni, Counsel for the respondents alongwith the Sh. Ashwani Setia, Respondent in Person

                  

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Aggrieved by the orders dated 08.08.2007 passed by the District Consumer disputes Redressal Forum (East) in CC-03/2007, in the matter of Sh. Ashwani Setia versus Him Motors Pvt. Ltd. and M/s Tata Motors, directing the OPs to refund a sum of Rs. 4,48,212/- purchase price of the vehicle to the complainant against the delivery of defective car and a sum of Rs. 30,000/- as compensation and Rs. 5,000/- as cost of litigation charges, the Tata Motors Ltd., Gurgaon has preferred an appeal before this Commission, for short appellant, under Section 15 of the Consumer Protection Act 1986, the Act, against Sh. Ashwani Setia resident of Delhi, hereinafter referred to as respondents, alleging that the observation of the District Forum contained in the impugned order regarding manufacturing defect on the face of it is totally erroneous and based on assumption and thus the order impugned is unsustainable and praying for setting aside the said order on the ground as set out in the appeal.
2.           Facts of the necessary for the adjudication of the appeal are these.
3.           The respondent no. 1 purchased Tata Indigo, registration no. DL-4CU-4216 manufactured by the appellant from the respondent no. 2 being dealer of the appellant on 25.07.2004. The respondent no. 1 during the warranty period alleged certain defects in the car in question. All the complaints of the respondent no. 1 were duly and diligently attended to by the authorised service stations of the appellant. The service stations removed all the defects to the satisfaction of the respondent no. 1. However the respondent filed a complaint before the District Forum alleging certain defects in the car, which complaint was disposed of by the Forum with the direction to the appellant to refund to the respondent no. 1 the purchase price of the car, i.e., Rs. 4,48,212/- as also Rs. 30,000/- as compensation and Rs. 5,000/- as litigation cost, observing as under:-

 

“The Hon’ble State Commission, Delhi defined manufacturing defect as the defect, which could not be rectified even after repair. Applying this definition and interpretation of the word ‘manufacturing defect’. The forum holds that vehicle was having manufacturing defect for the following reasons”.

 

4.           According to the appellant if the aforesaid observation is given effect to, it would lead to only one presumption that in the event of a complaint filed by a consumer alleging manufacturing defect, the only remedy would be replacement of the vehicle or refund of the purchase price of a vehicle without any expert or independent opinion. This observation of the Hon’ble District Forum on the face of it is totally erroneous and based on assumptions and cannot stand the scrutiny of law.
5.           The appellant has further submitted that whenever any customer alleges defects in the vehicle, the same is recorded in the Job Card and is thoroughly checked by the competent engineers at the service stations. The mere allegation or complaint got recorded in the Job Card by the customer, by no means, is the confirmation that the vehicle had any such defect. In the subject matter the car was sent to service stations three times and complaints of the respondent no. 1 were attended to on each occasion upto his satisfaction without any charge whatsoever during the warranty period. Therefore, the order to pay damages by the appellants to the respondent no. 1 and refund of the purchase price of the car which has run thousands of kilometres, is perverse. Further no expert opinion was furnished justifying the claim for the refund in full.
6.           This Commission had disposed of this appeal earlier on 26.11.2007, dismissing it finding no merit, and observing in para 8 as under:-

 

“We have taken a view that it is too much to ask the complainant to obtain expert opinion first before filling the complaint. He has already suffered at the hands of trader and to shell out more money to get the expert opinion would be rubbing salt on the wounds. It is the duty of the District Forum to obtain expert opinion on its own, if there is some doubt as to the extent of manufacturing or other defect. Even otherwise the onus to prove that the vehicle does not suffer from manufacturing defect lies heavily on the manufacturer and not on the consumer as in the perception of the consumer vehicle suffers from manufacturing defect or some orthe other defect if it breaksdown on the way time and again or off and on.

7.           However the Hon’ble NCDRC observing as under was pleased to remit the case back to decide the appeal afresh:-

 

“Burden to prove that there are manufacturing defects is on the person who alleges it. Burden was on the respondent to prove that there were manufacturing defects.

Respondent, who is appearing in person, states that there is evidence on record that there are manufacturing defects in the car but unfortunately the State Commission has not noticed the same.

Finding recorded by the State Commission is in the teeth of the provisions of Section 14 of the Consumer Protection Act as well as general law of the land to the effect that burden to prove that fact is on the person who alleges the said fact. State Commission, by making general observations, has disposed of the appeal. Order under appeal cannot be sustained and the same is set aside and the case is remitted back to the State Commission to decide it afresh in accordance with law after affording opportunity of hearing to the parties”.

 

8.           Accordingly the appeal has been taken up in this Commission for fresh adjudication on the alleged ground that the District Forum erred in holding that an expert opinion is not required to prove the defect. Secondly the District Forum had come to the above conclusion without appreciating the fact that the minor problems reported by the complainant primarily arose due to excessive running of the vehicle and poor driving. Thirdly, during warranty period the obligation of the manufacturer is limited to repairing and replacing free of charge such parts of the vehicle which in the opinion of the appellant are defective. It is admitted fact as demonstrated in the Job Card that as and when the Respondent no. 1brought his car to the authorised service stations for repair the same were attended to, to the full satisfaction of the respondent no. 1. Therefore, the question of deficiency in service does not arise and consequently damages, especially replacement of old car with the new car, are not maintainable. Fourthly the complainant/respondent no. 1 failed to establish any manufacturing defect in the vehicle in question or it met with an accident prior to the delivery or it was used vehicle. There is no cogent or valid evidence on record which shows that the vehicle in question was defective. There is no expert opinion on record to establish the alleged manufacturing defects. Finally the quantification of loss is a pre-requisite for awarding compensation under Section 14(1)(d) of the Consumer Protection Act, 1986. It is categorically laid down that the amount awarded as compensation is in respect of the loss or injury suffered by the consumer due to negligence of the OP. In other words, where it is not possible to quantify the amount of the loss suffered due to negligence of the OP. In other words, where it is not possible to quantify the amount of the loss suffered due to negligence of the OP, awarding compensation can be regarded as being arbitrary. The principles of law permit that the damages can be recovered only for direct consequences and not for indirect or remote consequence of a wrongful act. The Maxim “In jure non remota causa sed proxima spectator”, means that in law the immediate and proximate not the remote cause of any event is regarded. Therefore award of damages in the impugned order is a gross legal misconduct. In these circumstances no case has been made out for the relief granted to the complainant by the District Forum.
9.           The respondent no. 1 who was noticed by this Commission, stated in his submission that the appellant did not dispute his contention regarding the manufacturing defect in the car since the engine was opened within the warranty period on three occasions. No explanation explaining the reasons for the occurrence of the defect could be furnished. Secondly, the car when out of order being in the possession of the appellant they had no occasion to get the expert opinion. However they have stressed that their evidence filed be treated as expert evidence as they cannot go for expert opinion at this belated stage. Their main thrust of the argument is that the vehicle got out of order thrice within the warranty period. This by itself is sufficient an evidence to reach to a conclusion that the car had serious manufacturing defect.
10. The appeal was listed before this Commission for final hearing on 14.05.2019 when the counsel for both sides appeared and advanced their arguments as per their pleadings. I have read the records of the case and given a careful consideration to the subject matter.
11. Short question for adjudication in this appeal is whether the order impugned directing the appellant to refund the cost of the vehicle, the vehicle having been found to have manufacturing defect suffers from any infirmity as alleged by the appellant. This leads to deliberate on the point whether the complainant/respondent no. 1 has been able to prove and establish the manufacturing defects in the vehicle.
12. The complainant/respondent number has made an endeavour to establish that the vehicle developed serious defects on three occasions within the warranty period. This indisputed factum does not require to be established by or through expert opinion. This assertion gains force from the verdict of the Hon’ble NCDRC.
13. The Hon’ble NCDRC in the matter of Tata Motors Ltd. and anr. Versus Ravikant Garg as reported in III [2013] CPJ 85 (NC) is pleased to hold that once the manufacturing defects are there in the vehicle, there is no need for any expert opinion. Admitted facts need not be proved further.
14. The Hon’ble NCDRC in yet another matter, in the matter of Sas Motors Ltd. versus Anant Haridas Chaudhari as reported in III [2013] CPJ 520 (NC) is pleased to hold that no expert advice is required in the event facts speaks for themselves. In that case the vehicle purchased n 05.02.2005 was sent for repairing on 07.02.2005 where the vehicle remained for 38 days. Job Card for this purpose is sufficient to establish the fact.
15. The fact that vehicle went out of order on three occasions within the warranty period is indisputed. The manufacturer have also not controverted this fact. It is a trite law that in the event of manufacturing defect both manufactured and the dealer are liable to pay compensation. The decision of the Hon’ble NCDRC in the matter of Eicher Motors Ltd. versus Vijender Singh and anr as reported in IV [2012] CPJ 586 (NC) supports the point. The orders passed by the District Forum on scrutiny are found to be in line with the aforementioned decisions of the Hon’ble NCDRC.
16. Having regard to the discussion done and the legal position explained I am of the considered view that there exists no infirmity in the orders passed by the District Forum and accordingly the appeal is rejected and the orders of the Forum are upheld leaving the parties to bear the cost.
17. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. A copy of this order be sent to the District Forum for information.
18. File be consigned to records.

 

(ANIL SRIVASTAVA)

                                                                          MEMBER