Karnataka

Bidar

CC/82/2013

Sunil kumar S/o Basawaraj - Complainant(s)

Versus

VKG Motors And Others - Opp.Party(s)

P M DESHPANDE

30 Jun 2016

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                         C.C.No. 82/2013

 

                                                                                              Date of filing: 09/12/2013

 

                                                                                         Date of disposal : 30/06/2016.

 

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B

                                                                                                       President.

    

                                         (2) Shri. Shankrappa  (Halipurgi),

                                                                      B.A., LL.B.

                                                                                  Member.

                               

COMPLAINANT               Sunilkumar, s/o Baswaraj,

                                      Age: Major,  Occ: Private work,

                                        R/o 17-4-156/1, NGO colony,

                                      Mailoor layout, Near Mouneswar Mandir,

                                      Bidar.

 

 

                                     (By Shri. Deshpande P.M., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-             1.  VKG Motors,

                                            Pratap Nagar, Bidar.

 

                                       2. VKG Motors,

                                           Kapnoor, Humnabad road,

                                           Gulbarga.

 

                                       3.  Tata Motors Ltd.,

                                            Tank Sanand, Dist. Ahmedabad-382170.

                                            (Gujrath)

             

                                          (O.P.No.1&2 By Shri. S.S.Kumman, Advocate )

                                       (O.P.No.3By Shri MadanRao Biradar,Advocate)

                                                                                                                                                 

 

 

 

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

    The complainant is  before us with a complaint u/s. 12 of the C.P. Act, alleging unfair trade practices against the opposite parties.

2.          The complainant avers that, intending to  purchase TATA NANO Car, manufactured by the O.P.no.3 and traded by O.P.no.2 as dealer and O.P.no.1 as  sub-dealer had approached the O.P.no.1 and had acquired such car with specifications described in para no.1 of the complaint.

  a)   Engine no. 273MPF107PYYK67609

  b)  Chassis no. MAT612256BKP67440

  c)  Class of vehicle: LMV car LMV (car)

  d)  Makers name: Tata Motors Ltd.

  e)  Maker’s classification :Tata Nano IX

  f)  Purchase dtd;05-03-2013 (delivery given dtd)

  g)  Hypothecation with SBH Br. Osman Gunj Bidar.

  h)  Price paid on 23-02-2013.

  i)  Colour of vehicle pearl white.

  j)  1 extra tyre given of ordinary quality.

 

3.            The complainant in clause k of para 1 of his complaint claims that, even through vide a subsequent document issued by the O.P.no.3, the captioned car was manufactured in the year 2011, the dealer and sub-dealer, acting deceitfully had sold him the car claiming to have been manufactured in the year 2013.  The O.P.no.1 had issued a certificate to that effect, basing on which, the car was registered with the jurisdictional R.T.O. depicting origin of the year 2013.  The old car, fraudulently sold to the complainant by making false declaration, on use was found to be latently defective as specified in para no.4 of the complaint.

 

1. The vehicle sold is old mode i.e. 2011 ( as per Tata Motors certificate obtained later on) showing new brand of 2013, (document manipulation), found vehicle second hand.
2. Electric circuit fault in head light.
3. Shaking at low speed also
4. No average consumption.
5. Axling imbalanced.
6. Only one key given instead of 2 keys have to give.
7. No. Service manual book given.
8. No. Delivery note copy supplied.
9. User’s manual book not supplied.

4.            The complainant experiencing the latent defects in the Car in question had approached the sub-dealer for a replacement with a healthy one or refund the amount received towards the value of Car, which was never heeded by them and hence he is before us.

5.              The complainant further avers that, on account of the defects in the Car, it has been kept idle, he has paid Rs. 2,51,667/- towards the on road price of the Car.  He claims a refund of the aforesaid amount together with cost, damages and compensation amounting to Rs. 50,000/-.  He further claims that, the defects in the Car, which were inherent  in nature was notified to the O.Ps, but they have maintained stoic silence for which he has approached this Forum for refund of the amount of Rs. 2,51,667/- with interest and additional sum of Rs. 50,000/- towards cost, damages and compensation.  He has filed several documents vide Nos.1 to 16 as per the list annexed to the complaint.  He has filed evidence affidavit and written arguments on 05/11/2015, justifying his claim in the case.

6.               After receipt of notice, the O.Ps have put up appearance and have filed detailed versions.  At the threshold, vide an I.A. the O.P.no.3 ( manufacturer) had interalia claimed that, the Car be put to a test by an appropriate laboratory, but it appears from the order sheet, no further persuation was ever made by any of the O.Ps at the subsequent stages.  It further appears, the O.Ps have filed an I.A. for such examination in which, the year of the manufacture of the Car as 2011 was never mentioned.  The complainant on 26-02-2016 filed objections to the self serving I.A. of the O.Ps and this Court made an observation that, to clarify the instant confusion, an Automobile Engineer be appointed as a Court Commissioner, to ascertain the year of manufacture of the Car together with the inherent defects in the product.  In all fairness, this Court extended the opportunity to the counsel for O.P.no.3 to propose the name of such commissioner, but he has never raised up to the occasion.  The commissioner’s fee was reasonably fixed at Rs. 3,000/-.

7.             On the face of the inaction of the counsel for O.P.no.3, on the next date of hearing, the counsel for the complainant came forward on 11-03-2016, to pay the commissioner’s fee, name a competent Automobile Engineer by next date of hearing on 14-03-2016.  Missing the next oppertunity, on 26/03/2016, the complainant’s counsel proposed the name of one Sri.Ratan Kumar D.M.E.(A.E) and memo of instructions was proposed to the Court Commissioner on 28/03/2016.  A memo of instructions was directed to be filed which was acted upon by the complainant’s counsel only on 07-04-2016.  The counsel for the O.Ps were duly served with the copy, but there was not even a murmur and the Court had directed the commissioner to inspect the vehicle in the presence of both parties on 16-04-2016.

8.       After few hiccups, the Court Commissioner, Sri Ratan Kumar submitted his inspection report along with ten photographs of the Tata Nano Car on 07/05/2016 and on that day, the counsels for the O.Ps were conspicuously absent in the proceedings.   This Court acting under the principles of “exdebito justitae” granted time to the O.Ps. to file their objections on the Commissioner’s report on 28-05-2016, 03-06-2016, but no objection was filed.  On 03-06-2016, the learned counsel for the O.P.no.3 filed a memo along with an unsigned copy of Tax invoice and written arguments but no objections to the Commissioner’s report was filed.

9.          For the sake of brevity, the Commissioner’s report is extracted hereunder in detail

1.  The vehicle in question being a TATA Nano make car bearing Temporary Registration Mark KA-32/T-29347 with Chassis No. MAT612256BRP67440 and Engine No. 273MPF107PYYK67509 is of 2011 model as is evident from the invoice issued from TATA Motors Ltd:
2. The performance of the head lamp of the vehicle in question is not good and it appears that there is some error in electric circuit thereof:
3. There is shaking in the vehicle in question while it is driven at a low speed.  The reason for this discrepancy could be attributed towards uneven usage of old used tyres with no strength in the body building thereof:
4. The average fuel consumption of the vehicle in question is too poor and far below the expected mileage.
5. Since the very vehicle in question happens to be too old, there is a feel worthy shaking in the vehicle in question while driving it which could be attributed towards the very manufacturing defects in the axels and also due to deviation of all the tyres outwards in a flattened manner;
6. All the tyres which are found provided on the wheel bases are too old, used with huge wear and tear having no life in them and they fit to be detached and thrown to dustbin:
7. After driving the vehicle in question for a moderately considerable  distance, I found the entire engine and body thereof including the suspensions and stearing etc., to be very much defective and too noisy, and under any circumstances, the traveller cannot feel to be at ease while driving or sitting therein.
8. After holding a careful inspection of the vehicle in question, I find it to be good for nothing and scrap-worthy, and since it is full of manufacturing and such other defects contained therein, the vehicle in question is beyond repairs and cannot be made roadworthy despite investing any quantum of money.

10.           We have scanned the entire papers of the case methodically  and it has been observed that, though at the inception, there has been some amount of complacency, later, the O.Ps seeking permission of the Court had filed their detail versions and now they form part of the record.  Both sides have also filed the relevant documents (copies) in support of their contentions, respective evidence affidavits and written arguments eulogizing their respective stands in the case.  To arrive at an appropriate synthesis, we propose to deal with the defence of the O.P. 1 & 2, being the principal players at the threshold.  Their joint defence in abbreviation is noted underneath.  The defence of the O.P.no.3 to be dealt at a later stage.

11.         The joint written statement of the O.P.no.1 and 2 deny the complainant as a consumer, in spite of selling the vehicle to them against a valuable consideration.  They further claim themselves not to be manufacturers of the vehicle, there is no deficiency of service in their part albeit they admit them as dealer and sub-dealer of the vehicle sold.  They claim that, there was “NANO VINTAGE OFFER”for a period of two days i.e. 22-02-2013 to 23-02-2013 with a rebate offer of Rs. 50,000/- to dispose of old stocks.   The documents filed by them (photographs) as Ex.R.1 to 3, no doubt gives a little credence to their claims.  In the instant case, now it has been crystal clear that, the captioned car through was manufactured in 2011 was sold claiming to be of 2013 origin.  (Ex.P.9 to be looked at along with Ex.P.7).  How at all, a car whether manufactured during 2011 or 2013 can be called as a vintage car is a big wonder itself.  Then what should we designate Morris minors, Bentleys, Austins etc? Antiques? However, in the instant case, vide the sale certificate (Ex.P.7) the car has been sold on       05-03-2013 so it cannot be said that, there was any nexus of the transaction with the VINTAGE car arrangement.  It has been further canvassed that, the complainant booked the car by paying Rs. 20,000/- on 23-02-2013 and later he paid a sum of Rs. 1,50,000/- by availing a bank loan on 05-03-2013.  Thereby the O.Ps no.1 and 2 claim that, they have sold the car to the complainant against a price of Rs. 1,70,000/- against a total cost of Rs. 2,18,878/- and they also further state that, they have refunded the advance amount of Rs. 39,902/- to the complainant on 27-02-2013 against a validly executed receipt, submitted as Ex.R.4( debit voucher).  We have meticulously analysed the signature ( alleged) of the complainant in Ex.R.4 with that of the one appended in vakalath.  We have no hesitation to hold that, the claimed signature of complainant in Ex.R.4 is nothing but a forgery, a pathetic attempt of camouflaging.

12.           Next, how could an amount of Rs. 39,902/- could be at all refunded, when a sum of Rs. 50,000/- was being given as a rebate.  The rest of narrations of the O.P.no.1 and 2 are nothing but attempts to conceal their act of deceit.  We then put our anxious considerations to Ex.P.8, copy of invoice issued by the O.P.no.1 and 2.   There in the price of the car has been mentioned as Rs. 1,83,321/- and VAT as Rs. 26,581/- and total price of Rs. 2,09,092/-.   In Ex.P.9, it is clear that, the car was really manufactured in the year 2011, but was sold to the complainant as a 2013 model.  There after, looking at the contents of Ex.P.12 proforma invoice issued by M/s V.K.G.Motors, we find altogether they have collected a sum of Rs. 2,51,667/- from the complainant towards the ex- show room price of the vehicle, insurance charges life time tax, handling charges and P.R.C. and delivered to him a worthless car, which is not roadworthy and usable in any respect, in spite being handed over the same to the dealers for rectification as is evident from Ex.R.5.  We have extracted the report of the Court Commissioner, a qualified automobile Engineer, who has tested the vehicle on road and interalia has opined at the last of his report that, the vehicle is good for nothing but scrap worthy, without any chance of making it road worthy despite investing any quantum of money.

13.             Therefore, we conclude that, the car in question is replete with latent defects, devoid of any chance of repair, sold by deceit, skulduggery to the complainant by the O.Ps no.1 and 2 to make an unlawful gain, and they are bound to refund the entire sum of Rs. 2,51,667/- as reflected in Ex.P.12, albeit they may take back the vehicle on payment.  We have before us a judgment of the Hon’ble National Commission reported in 2016(2) CPR 498, in which it has been held that, “Huge compensation must be awarded for supplying a car with manufacturing defect”.  We also have before us another Judgment of the Hon’ble National Commission reported in 2014(I) CLT page-240 (Hind Motors India Ltd. & ors. v/s Lakhbir Singh & others), which squarely applies to the present case and the ratio is reproduce here for reference.

 

      Consumer Protection Act,1986, Sections 2(1)(r) &   

      13(1)-Defective vehicle-Manufacturing defect-Expert   

      opinion-Held:-

 

 

1. Act of the petitioners in selling the vehicle which was manufactured in the year 2005, in the year 2006 without disclosing the date of manufacture to the complainant certainly amount to an unfair trade practice.(para18)

 

2. Within eight months of selling of the vehicle, as per petitioners ‘own case, it required substantial repairs worth Rs. 2.25 lakh-This itself goes on to show that there were inherent defects in the vehicle, that is, why it required substantial repairs.(Para 19)
3. No expert opinion is required as the facts of the case itself speaks that major repairs were required just after short span of eight months from the date of the sale of the vehicle.(para 19)
4. Petitioners were deficient in rendering service-Finding of fact-Cannot be interfered with in exercise of the revisional jurisdiction u/s.21 of the Act.(para20)

14.         The learned counsel for the complainant had further submitted another case law of the Hon’ble National Commission, reported in 2014(I) CLT-page-238 wherein the important aspect of the findings has been highlighted as follows:

 Defective vehicle-Not necessary to prove manufacturing defect- it is the bounden duty of both the manufacturer and the dealer to attend to the said defect and make it a defect free vehicle-If they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer.(para 8

15.       Hereinafter, we attempt to deal with the half hearted self eulogizing, double speaking defence of the O.P.no.3.  The O.P.no.3 claims itself to be self righteous, forthright, flaw less entity.  It claims that, it’s products are certified by Automotive Research Association of India, of certified ISO standard, having hundreds of centres to impart service to it’s customers and so on.  As has been discussed earlier, at the threshold, an application was filed by the O.P. no.3, quoting the requirement of the car to have been examined by a notified and recognized laboratory as provided u/s.13(I) of the C.P.Act.  In other words, the O.Pno.3, was expecting this Court to fetch a crate or container, measuring about 7 feet X 6 feet X 5 feet, to put the defective (alleged) car inside it, seal it on all aspect, then use a crane to lift the sealed/secured car to the body of a carrier and transport it to an authorized laboratory, at the expenses of a customer for proper test and analysis.  How preposterous?

16.           However, as has been discussed earlier, this application was never pursued properly or ethically and was ignored.  As would be evident from the order sheet, there has been enough complacency in the part of the O.P.no.3 in diligently pursuing it’s case, ultimately coaxing this Court to appoint an automobile Engineer as Court Commissioner and his report after a threadbare inspection of the TATA NANO CAR is now part of the record.

 

17.       Another most highhanded submission has been made by the O.P.no.3 that, it’s relationship with O.P.no.1 and 2 was on principal to principal basis and TATA MOTORS is not responsible for the follies, malfeasance,  misfeasance of the O.P.no.1 and 2.  The question arises had any time in the past,  TATA MOTORS has brought out any ad or declaration in any media to the effect that, it’s distributors, stevedors, sellers, Dealers or sub-dealers have no fiduciary relationship with the manufacturers i.e. TATa MOTORS, thereby, non can claim any vicarious liability against the manufacturesrs?  If that has not been done in the past at any time, how can the O.P.no.3 escape from the doctrine of estoppels as provided for in section 115 of the Evidence Act?  The copy of Tax invoice produced as Ex.R.6 has got nothing to do with customer.  The same is meant to produce before commercial Tax authorities and proves that, the state has also been cheated by the O.P.no.1 and 2. 

18.            The analysis (s) discussed supra lead to the inevitable conclusion that, all the three O.Ps are birds of same feather flock together and all of them are equally liable for supplying defective goods to the complainant, deficiency of service, act of deceit, skulduggery and unethical trade practice and hence we are constrained to pass the following:

: :   ORDER : :

 

              For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act. 1986 is hereby allowed in part with costs against O.Ps.

 

              (a)  The O.Ps are jointly and severally liable to pay back a sum of Rs. 2,51,667/- to the complainant with 12%  interest p.a. calculated from the date of sale of the car i.e. 05-03-2013 till the date of realisation.  (Refer Ex.P.8).  They would be at liberty to take back the captioned car, on payment, to deal with any manner they prefer.  The complainant would sign all the relevant papers to transfer the vehicle’s ownership.

 

               (b)   The O.P no.1 and 2 separately would jointly and severally pay a compensation of Rs. 50,000/-( Rupees fifty thousand only) to the complainant for their act of deceit.

 

              (c)     The O.P.no.1 and 2 would jointly and severally pay litigation expenses of Rs. 20,000/- to the complainant.

 

             (d)    Though, this case may be in isolation, none knows, how many purchasers of TATA NANO CAR have been taken into ride.  Hence acting u/s. 14 (hb) of the C.P.Act, 1986, we direct that, each of the O.Ps deposit a sum of Rs. 5,00,000/- under the head of consumer welfare fund in this Forum without demur.

               (e)  A copy of this order be transmitted to the Asst. Director Information & publicity, Govt. of Karnataka, near Rly. Station, Bidar for wide publicity in all vernacular papers in Karnataka and English papers in National level as well as circulating in Electronic media for consumer awareness within seven days of receipt of the copy of the order, failure of which would invite dereliction of duty and prosecution of defying the lawful orders.

 

 

                (f)   Four weeks time is granted to fulfil this order.

 

              

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this  30^th  day of  June-2016 )

 

                          Sd/-                                                                                                 Sd/-

                  Sri. Shankrappa H.                                                               Sri. Jagannath Prasad                                

                         Member                                                                                    President

 

                                               

Documents   submitted by the parties

 

Complainant

                                                                                                                              

1.Ex.P.1- Form no.2- application for registration of Motor vehicle.

2.Ex.P.2- Money receipt of R.T.O. Bidar.

3.Ex.P.3- Money receipt of R.T.O Bidar.

4. Ex.P.4- Money receipt of  R.T.A.

5. Ex.P.5- Aadhar card of complainant.

6  Ex.P.6- Temporary Registration certificate.

7  Ex.P.7- Sale certificate dt.-5/03/2013 of O.P.ns.1 & 2.

8  Ex.P.8- Invoice dt. 05/03/2013.

9. Ex.P.9- certificate of Tata Motors regarding manufacturing year of the car.

10.Ex.P.10- Certificate regarding Tyre conditions by Lohit Motors.

11.Ex.P.11- Insurance certificate.

12.Ex.P.12-Proforma invoice of O.P.no.1 & 2.

13. Ex.P.13- Bank statement.

14. Ex.P.14- R.C.Book.

15. Ex.P.15- Office copy of legal notice.

16. Ex.P.16- Courier receipts ( 3 numbers )

 

Opponent/s.

 

1. Ex.R.1to R.3 Colour Photos.(Three).
2. Ex.R.4- Debit voucher dt. 27/02/2013 of V.K.G.Motors.
3.  Ex.R.5- Job cards (Three numbers)
4. Ex.R.6- Tax Invoice.

 

                                     Sd/-                                                                                   Sd/-

                             Sri. Shankrappa H.                                               Sri. Jagannath Prasad                                

                                    Member                                                                       President