HARDEV SINGH vs Tata Engineering and Locomotive Company Ltd.

THE complainant Shri Hardev Singh purchased Tata LTP-709 for a sum of Rs. 5,18,000/- which starting giving problem to the complainant inasmuch as its engine started leaking. THE said truck was manufactured by O.P. No. 1 - Tata Engineering and Locomotive Company Ltd., Mumbai (for short hereinafter referred to as Company), which has a local office at Chandigarh, also impleaded as O.P. No. 3 - Company. It is alleged that the said truck was financed by O.P. No. 4 - Tata Finance Ltd., Chandigarh. THE truck had been purchased by the complainant as a young person for the purpose of self-employment and earning his livelihood. THE sale transaction took place through the dealer O.P. No. 2 - Krishna Autosales, 177-E, Industrial Area, Phase I, Chandigarh. THE amount of loan was to be paid in 35 instalments out of which 20 instalments @ Rs. 15,800/- had been paid up to August, 2002. THE complainant took up the matter regarding the leakage of engine oil from the chamber of the vehicle and problem of clutch sleave with the O.P. who told him to run the vehicle for some time and these problems were likely to be removed and vehicle would run smoothly. THE aforesaid defects were, however, not removed despite the truck being run. THE complainant again took up the matter with the O.P. and he was told to get back the vehicle to the authorised dealer of the Company and accordingly it was taken to Kurali Automobiles at Kurali on 24.11.2001 where some repairs were undertaken and some spare parts were also replaced vide cash memo/bill Nos. 401 and 402 dated 25.11.2001 (Photocopies Annexure C-5 and C-6). THE costs of repairs amounted to Rs. 4,893/-. THE complainant, however, faced the same problem of leakage of engine oil even after the repairs undertaken at the authorised Service Station at Kurali Automobiles, Kurali and he was asked to take the vehicle once again for the second time to Kurali Automobiles on 28.2.2002. THE vehicle was taken and was repaired. THE complainant was made to pay a sum of Rs. 857/- vide bill/cash memo No. 636 dated 28.2.2002 (Copy Annexure C-7). It is alleged that even after the repairs undertaken for the second time, the problem of leakage of engine oil from the chamber was not removed and it continued to leak. O.P. No. 3 i.e. the local agent of the manufacturer - O.P. No. 1 was intimated through a letter about the leakage of the engine oil from the chamber and the problem in the clutch sleave and its cylinder vide copy of letter dated 6.4.2002 (Annexure C-8).

THE grievance of the complainant is that O.P. No. 3 did not take any steps to check the vehicle and remove the problems faced by the complainant who waited for some time and wrote another letter to O.P. No. 1 wherein it was specifically mentioned that the aforesaid truck was giving problem of leakage of oil from the chamber with additional problem of vibration in the gear and improper working of the controller etc. It was also informed that the battery of the vehicle was also not working properly and it stopped working on 20.3.2002. Copy of this letter dated 2.5.2002 was appended as Annexure C-9. It is alleged that O.P. No. 3 contacted the complainant on telephone and asked him to get the vehicle checked and repaired from Titan Motors Pvt. Ltd. at Chandigarh where the truck was taken for repairs for the third time on 10.5.2002. THE truck was checked up and repaired. THE truck was kept for two days for repair in the Service Station of Titan Motors Pvt. Ltd. where some repairs were done and spare parts were also replaced. THE truck was thereafter handed over to the complainant who was made to pay a sum of Rs. 2,832/- vide bill No. 1746 dated 10.5.2002 (Copy Annexure C-10). THE complainant was asked to sign the card for satisfaction. THE complainant after getting the vehicle from the Titan Motors Pvt. Ltd. started the vehicle there but it was giving the problem of vibration and leakage of engine oil from the chamber. THE complainant did not sign the satisfaction card and brought the vehicle back after making the payment of Rs. 2,832/-. THE complainant received a letter dated 21.5.2002 from O.P. No. 1 - Company/manufacturer informing him that the O.P. No. 1 was directing its office at Chandigarh i.e. O.P. No. 3 to get in touch with the complainant with regard to its representation-letter dated 21.5.2002 (Copy Annexure C-11). THE complainant also received a letter dated 3.6.2002 from Chandigarh Commercial Vehicle Division - O.P. No. 3 vide Copy Annexure C-12. It is alleged that despite getting the vehicle repaired time and again, the problem faced by the complainant of the leaking of the engine oil from its chamber continued. Apart from it, the vehicle after running about 2000 kms., reduced the amount of engine oil from 2 to 3 litres. A letter in this regard was sent on 21.6.2002 to the manufacturer - O.P. No. 1 (Copy Annexure C-13) highlighting the problems faced by the complainant. The complainant received a letter dated 8.7.2002 from O.P. No. 3 that on receipt of letter dated 21.5.2002 of the complainant, the vehicle was sent to the Titan Motors Pvt. Ltd. for repairs. The complainant has, however, denied about the sending of any letter dated 21.5.2002 to the O.Ps. He also denied the fact that the vehicle was sent for repairs after 21.5.2002 to the Titan Motors Pvt. Ltd. It is alleged that the vehicle was sent to Titan Motors Pvt. Ltd. on 10.5.2002 and received without any satisfaction and without signing the satisfaction card of the Service Station of Titan Motors. A copy of letter dated 8.7.2002 sent by O.P. No. 3 was placed on record as Annexure C-14. The complainant was told to bring the vehicle for its proper physical checking. The vehicle was checked and repaired three times by the authorised Service Stations of O.Ps. and the problems faced by the complainant still persisted rather increased.

The contention of the complainant is that the truck had manufacturing defect in its engine and the leakage of engine oil from the chamber could not be removed. The vehicle was also shown to some other mechanics by the complainant who after checking the vehicle told him that there is manufacturing defect in the engine of the vehicle, which could not be rectified, and they refused to repair it. The complainant served a legal notice dated 13.7.2002 and filed the complaint case wherein he prayed for the refund of the price of the vehicle i.e. a sum of Rs. 5,18,000/-; interest thereon from 6.12.2000 to August, 2002 amounting to Rs. 1,55,480/-, damages for mental and physical agony and other losses amounting to Rs. 2,00,000/- and expenses for repair amounting to Rs. 8,582/-. The total amount under all the headings came to Rs. 8,82,062/-.

THE notice of the complaint was sent to the O.Ps. O.P. Nos. 1 and 3 filed a joint written statement while O.P. No. 2 filed a separate written statement. O.P. No. 4 also filed a separate written statement. THE parties led evidence in the shape of affidavit of complainant and affidavits of O.P. No. 2 and O.P. Nos. 1 and 3, O.P. No. 4 filed evidence in the shape of affidavit separately. We have heard Mr. Ajit Singh, learned Counsel for the complainant and Mr. A.S. Bakshi, Advocate for O.P. No. 2 and Mr. D.K. Singal, Advocate for O.P. No. 4. Mr. P.K. Kukreja, Advocate did not put in appearance on the date of hearing i.e. 27.1.2003, however, subsequently he appeared and moved an application, copy of which had been given to the learned Counsel Mr. Ajit Singh, Advocate for the complainant in advance. Mr. Ajit Singh also appeared on 30.1.2003 and the submissions of Mr. P.K. Kukreja, Advocate for O.P. Nos. 1 and 3 as well as the reply of Mr. Ajit Singh, Advocate for the complainant were heard.

THE learned Counsel for the complainant referred to the documents appended to the complaint as annexures to show that despite the truck having been taken for repairs to the authorised Service Station of the manufacturers and lastly to the Service Station - Titan Motors Pvt. Ltd., the repairs were carried out and spare parts were also replaced but the main problem of leakage of the engine from its chamber and other problems of vibration of gear and clutch sleaves could not be removed and it amounted to manufacturing defect. So far as O.P. No. 2 is concerned, the O.P. No. 2 has no role to play inasmuch as it acted as a dealer for O.P. No. 1 - Company and was not associated with the repairs of the truck. O.P. No. 2 is also not the manufacturer of the vehicle. In our considered opinion, the complaint against O.P. No. 2 is not maintainable and is liable to be dismissed. Similarly, so far as O.P. No. 4 - Tata Finance Ltd. is concerned, it has provided the loan to the complainant for the purchase of the Tata truck and it has no role in the manufacturing of the truck or in the repairs of the truck for removal of the defects. Any dispute regarding the non-payment of remaining amount of the loan gives rise to a separate cause of action which is in the nature of a money suit and which cannot be clubbed along with the cause of action mentioned in the present complaint vide which damages are being sought including the refund of the amount of the price of the truck and as such the O.P. No. 4 cannot be held to be a party providing any service to the complainant regarding the truck in question and remedy, if any, can be availed of in an appropriate Civil Court of competent jurisdiction. The complaint against O.P. No. 4 is thus also liable to be dismissed.

SO far as the manufacturing defect in the vehicle is concerned, Mr. P.K. Kukreja, Advocate appearing for O.P. Nos. 1 and 3 strenuously argued that the complainant has not led evidence of any expert to show that the truck in question suffered from any manufacturing defect which entitled the complainant to seek the refund of the price of the vehicle in question. He referred to Annexures C-14 and C-16/A, copies of letters written by the manufacturers to the complainant regarding the inspection and repair of the defects in the truck and the complainant not complying with the same and as such it was argued that the complainant failed to prove any manufacturing defect in the truck. The truck was duly attended to by the authorised agents of the manufacturers and repairs were done on the truck. He cited the authority reported as 1994 (2) CTJ 209 (NC) in support of his contention.

THERE cannot be any dispute regarding the proposition of law that consumer/complainant is required to lead credible expert opinion to show that the vehicle in question suffers from manufacturing defect. The facts of the instant case, however, as mentioned above and as per the evidence placed on record, un-mistakenably show that despite three or four attempts made to remove the defect of leakage of engine oil from the chamber of the engine, the said defect could be removed. The complainant took the vehicle in question i.e. Tata Truck to the authorised Service Station of the manufacturers located at Kurali on two occasions with the probe of leakage of engine oil from the chamber. The complainant wrote letter dated 6.4.2002 (Copy Annexure C-8) by way of reminder to Telco Regional Office. It was followed by a complaint dated 2.5.2002 addressed to the Regional Office of the manufacturer in Mumbai. The Regional Service Manager Mr. Rajiv Sharma of the manufacturers attended to the complaint dated 2.5.2002 and sent letter to the complainant regarding the vehicle in question bearing Registration No. HR 37-B 0169. In this letter, it was mentioned to the complainant that as regards the leakage, the Company was instructing the office at Chandigarh to get in touch with the complainant and sought out the problem, if any. On the issue of battery, the warranty as per term of the OEM of battery was 15 months from the date of manufacturing and of one year from the date of sale. This was followed by letter dated 3.6.2002 (Copy Annexure C-12) wherein the manufacturer wrote to the complainant that "Our TASS M/s. Titan Motors has attended your all problems. Regarding battery problem, we had taken up matter with M/s. Exide Local Office at Chandigarh. Mr. Kulbir Singh, Branch Manager, Exide Battery has also spoken to you on this issue over the telephone and apprised you regarding their decision." The complainant had clearly mentioned to the manufacturers that he was not at all satisfied with the repairs made by Titan Motors Pvt. Ltd. and the problem of leakage etc. still continued. The complainant sent another reminder (Copy Annexure C-13) on 21.6.2002 wherein the main problem of leakage of engine oil from the chamber was highlighted. On 13.8.2002, the Area Service Coordinator of the manufacturer wrote to the complainant vide letter (Copy Annexure C-14) wherein the complainant was apprised, inter alia, as follows : "On receipt of your letter dated 31.5.2002, your vehicle was sent to M/s. Titan Motors and it was attended there. All the problems of engine oil leakage etc. were rectified and the vehicle was delivered to you on your entire satisfaction. Regarding complaint of Exide battery, the complaint raised in February, 2002. As per date of sale, warranty on battery expired on 5.12.2001 hence the complaint cannot be attended under warranty. While going through the service record of your vehicle it was observed that your vehicle has not reported to our any authorised workshop for routine maintenance job. For example your vehicle reported to our Kurali TASS on 24.11.2001 at 62,960 kms. after a gap of 7 months i.e. last attended at 22,619 kms. on 7.2.2001 and after November, 2001 the vehicle reported to our TASS on 28.2.2002 after a gap of 4 months. As per our warranty policy and procedure warranty on vehicles becomes null and void if periodical maintenances are not carried out. It is observed that your vehicle was running satisfactory during this period. Still our representative has requested you on date 3.7.2002 to send the vehicle to any of our Service Stations, which suits you, for thorough check up of engine etc. for any complaint of engine oil leakage, which was refused by your good self..."

Thereafter, the complainant served a legal notice dated 30.7.2002 (Annexure C-15) and the complaint was filed on 23.8.2002. During the pendency of the complaint, the vehicle in question had been taken to authorised dealer in pursuance of letter dated 21.8.2002 (Copy Annexure C-16/A) issued by the Area Service Coordinator addressed to the complainant on the subject "Leakage of engine oil in your vehicle LPT 709", which reads as under : "This has reference to the telecon undersigned had with you regarding the oil leakage problem in your vehicle LPT 709. I request you to please bring your vehicle at the nearest dealer point/TASS and intimate the undersigned so that proper check up of your vehicle can be done. I assure you that all your grievances will be taken care for."

PHOTOCOPY of Annexure C-16/B shows that on 2.10.2002, the vehicle was examined and particulars of repairs mentioned. It is mentioned that the customer refused to sort out engine oil leakage problem. It is duly signed by the authorised dealer with stamp. The learned Counsel for the complainant referred to Para 7 of the amended complaint which contended the following averments : "7. That even after getting it repaired second time, the problem of leakage of engine oil from the Chamber remained as it was and in this regard the opposite party No. 3 was intimated through a letter by the complainant complaining about the leakage of engine oil from the chamber and problem in the clutch sleave and its cylinder. The copy of the letter dated 6.4.2002 is appended as Annexure C-8 with the present complaint."

The learned Counsel for the complainant referred to the reply filed by O.P. Nos. 1 and 3 who admitted the averments made in Para 7. The reply on merit to Para No. 7 of the complaint is as under : "Para No. 7 of the complaint is admitted." Even in the affidavit filed on behalf of O.P. Nos. 1 and 3 by Mr. S.K. Jindal, Assistant Manager Customer Support, Tata Engineering and Locomotive Co. Ltd., in Para 15 of the affidavit, the contents of Para 7 of the complaint were admitted. The contention of the learned Counsel for the complainant was that this evidence placed by him clearly showed that the chamber of the engine had manufacturing defect as the leakage of the engine oil from the chamber could not be stopped despite repeated repairs carried out and various parts replaced by the authorised service agents of the manufacturers. As mentioned earlier, the complainant has not filed any evidence of an expert in the field of automobiles to prove the manufacturing defect in the engine and as such it cannot be held that the complainant led credible evidence of an expert in the field to prove the manufacturing defect but still the complainant has been able to show that despite repeated attempts made for repairing the chamber of the engine of the truck in question, the problem of leakage of engine oil from the chamber could not be solved and the engine oil continued to leak from the chamber of the engine of the truck in question. Under these circumstances, we find that the grievance of the complainant is genuine and the complainant as a consumer has to be protected insofar as the defect which he is facing in respect of the vehicle purchased from the manufacturers.

UNDER these circumstances, it would be appropriate that the manufacturers of the vehicle i.e. O.P. Nos. 1 and 3 be directed to replace the chamber of the engine of the truck in question so that the problem of leakage of engine oil from the chamber of the engine is removed. The complainant cannot be allowed the refund of the price of the truck purchased by him due to his failure to lead evidence of an expert to prove the manufacturing defect in the vehicle but he is certainly entitled to have this defect removed by the manufacturers by replacing the defective part by a new part. Besides it, the complainant is entitled to get the refund of the amount which he was made to pay regarding the repair of the problem relating to the leakage of the engine oil from the chamber of the engine. Apart from it, the complainant faced a lot of harassment by running from one authorised service station to another in order to get the redressal of his grievance but the authorised service agent failed to remove the defects. In this regard, a sum of Rs. 50,000/- would be just and appropriate. Since the O.P. Nos. 1 and 3 were deficient in rendering service in not being able to remove the defect of leakage of engine oil from the chamber of the engine and other problems like clutch sleave, its cylinder and gear vibration. The O.P. Nos. 1 and 3 are liable to pay compensation for mental and physical harassment to the complainant and in this regard, a sum of Rs. 50,000/- would be an adequate and just amount. Resultantly, the complaint is partly allowed. The O.P. Nos. 1 and 3 are directed to replace the chamber of the engine with a new one in order to remove the problem of leakage of engine oil from the chamber of the engine. With regard to the other problems like clutch sleave, its cylinder and gear vibration, they are further directed to remove these defects by doing the necessary repairs. Besides it, the O.P. Nos. 1 and 3 are directed to pay a sum of Rs. 8,582/- spent by the complainant over the repairs of the truck in question and further to pay a consolidated sum of Rs. 50,000/- for mental and physical agony suffered by the complainant. The complaint in respect of the refund of the price of the vehicle and interest thereon is dismissed.

THE O.P. Nos. 1 and 3 are directed to carry out these directions within two months from the date of receipt of copy of this order, failing which, the amounts directed to be paid shall carry interest @ 9% per annum till payment. THE parties are directed to bear their own costs. THE complaint is dismissed against O.P. Nos. 2 and 4. Copies of this judgment be sent to the parties free of charge. Ordered accordingly.