NACHIKET P SHIRGAONKAR vs PANDIT AUTOMOTIVE LTD

THE factual matrix of case in brief is as follows:

ON 18. 6. 2004 the complainant Mr. Shirgaonkar purchased a Tata Sumo manufactured by M/s. Tata Motors Limited (Original OP 2) from its authorised dealer M/s Pandit Automotive Limited, Tilak Road, Pune (Original OP 1 ). The complainant found a number of defects in the vehicle, hence he took the vehicle to OP 1 who tried to remove the defects but not to the satisfaction of the complainant. He was convinced that there were manufacturing defects accordingly, he handed over the vehicle to custody of OP 1 on 12. 7. 2004 since then it is lying there. Later on the complainant filed a complaint before the District Forum, Pune, which was resisted by the OPs stating that defective parts of the vehicle have been replaced and the vehicle was properly repaired. Though the vehicle was kept ready for delivery, complainant did not take the same and insisted on its replacement.

The District Forum after hearing the parties and going through the records of the case allowed the complaint by its order dated 2. 9. 2005 and directed the OPs jointly and severally to replace the vehicle with a brand new vehicle within six weeks from the date of the order. OPs were also directed to pay Rs. 10,000 to the complainant by way of costs of the proceedings and as compensation.

DISSATISFIED by the order of the District Forum OP 1, OP 2 and complainant have filed 3 separate appeals. The State Commission partly allowed the appeal filed by OP 2 - M/s. Tata Motors. The Commission also allowed the appeal filed by the OP 1 with the following directions: "however, appellant is directed to deliver the vehicle to the complainant within 15 days from the date of order, making it roadworthy. If some parts are required to be replaced, appellant shall replace the parts at their cost and made the vehicle roadworthy. "

THE State Commission dismissed the appeal and the complaint filed by the complainant with the aforesaid directions. Aggrieved by the order of the State Commission the complainant has filed revision petition before us. Findings: We have heard the learned Counsel for the parties at length. The complainant had purchased Tata Sumo Ex + Model vehicle on 18. 6. 2004. When the delivery was taken head-light setting was not proper, engine noise was found, weather strip was not good, tyre pressure was not checked. Vehicle was not cleaned from inside and outside. Black spots on the vehicle were there as the vehicle was parked under a tree. After cleaning the vehicle, the dealer has delivered it on the same day at 9. 30 p. m. As the problems persisted OP 1 gave the vehicle to M/s. Shinde Auto Motor Service, authorised workshop of OP 2 on 8. 7. 2004 on which date water leakage problem was found. Accordingly, Job Card was prepared but the problem could not be rectified to the satisfaction of the petitioner as according to him they tried to rectify the same by use of sealant. The complainant was advised to refer the vehicle to workshop of OP 1. The vehicle was given on 12. 7. 2004 to the workshop and the Job card No. 13157 was prepared. It was observed that at that time there was poor pick up and kilometre reading was 3130. During the rains from 18. 6. 2004 to 12. 7. 2004 there was seepage of water inside the vehicle. The vehicle was checked by the employees and supervisor of OP 1 and they came to conclusion that the engine was completely defective. The OP 1 promised that the engine will be changed completely but they refused to change the body of the vehicle despite seepage of the water inside the vehicle. The complainant felt that OP 1 had sold a second hand defective vehicle to him. The request of the complainant asking OP 1 to replace the vehicle with a new vehicle free from defects was not acceded to hence he left the vehicle at the workshop of OP 1 on 19. 7. 2004. Since then it is lying there.

IN this connection, it is worthwhile to look into certain documents. On 9. 8. 2004, Mr. S. C. Vartak, General Manager of OP 1 had replied to a letter of the complainant dated 9. 7. 2004 extracts of which is given below: "the vehicle is warranted for all manufacturing defects for 50,000 kms. or 18 months whichever is earlier as yours is a tourist vehicle. Thus the necessary parts were replaced wherever the manufacturing defect is observed. The body shall not have any manufacturing defect. Hence it is not replaced".

(Emphasis supplied)

ANOTHER letter of the same date signed by A. G. Bapat, Works Manager of OP 1 addressed to the complainant extracts of which is given below: "the above mentioned vehicle which was received by us for 1st free service and other repairs has been satisfactorily serviced and is ready in all aspects. We have replaced the engine assembly of this vehicle under warranty. All jobs have been carried out as per regulation laid by Tata Motors Limited and the vehicle is ready for delivery. Please ensure to take the delivery of the vehicle at early date. Thanking you and assuring of our best service always. "

(Emphasis supplied) This is a clear admission on the part of OP 1 authorised dealer of OP 2 that they had to replace the engine assembly during the first free service itself. In addition, they have carried out other repairs and subsequently serviced the vehicle according to them. Further, they have stated that as per the regulation laid by Tata Motors they have carried out all jobs. This is a clear indication that necessary parts were replaced due to manufacturing defects.

The complainant in para 3 of his complaint has submitted that "from day one after taking delivery the vehicle was not running properly and there were various problems. Pre-delivery inspection sticker was not put. Vehicle was not cleaned. Headlight setting was not proper. There was water leakage problem, which was tried to be rectified by use of sealant, which was not effective. There was poor pick up, at speedo metre k. m. reading was 3130. Vehicle was flooded during rains and engine was completely defective. " This was replied in the written submission by OP 1 and the relevant portion is reproduced below: "the further contention in paragraph 3 of the complaint that thereafter the vehicle was given to the workshop of this opponent is generally correct. The other contentions regarding job card no. , chassis No. and engine No. are generally true. "

"it is true that the opponent promised that the engine shall be changed completely if required, and explained that the body will be repaired by filling the sealant. "

THE complainant in his complaint has stated that he purchased a vehicle Tata Sumo for his tourist business by availing loan facility from TATA BHPC for the purchase of the said vehicle and has paid the entire amount to the OP 1. Hence, it was argued on behalf of the dealer and manufacturer that the complainant is not a consumer. It is not the case of dealer or manufacturer that the complainant owned a fleet of taxies and ran a tourist business as a Private Limited Company employing many drivers. The complaint is not happily worded i. e. he bought this Tata Sumo for tourist business. He should have added the following words, "as a means of self-employment". The petitioner has filed an affidavit stating that the petitioner is carrying on tourist business for his livelihood and has no other source of income. In any case as neither the dealer nor the manufacturer have filed any revision petition against the order of the State Commission, we can''t give credence to their contention. In today''s world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the consumers by issuing advertisements in the print and electronic media making huge claims about the capacity and good quality of their vehicles introduced by them in the market. Hence, the gullible consumer who is lured by these advertisements, expects defect free smooth service at least in the first year of purchase of the car. In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the Consumer Forum in the written submissions filed by OP 1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitur i. e. facts speak themselves hence there is no need to refer the vehicle to a third party for giving an opinion.

THIS Commission in its decision in Hyundai Motors India Limited v. Affiliated East West Press (Pvt.) Limited, I (2008) CPJ 19 (NC), has observed that- "the question which arises for consideration in this case is if a luxury car, namely, Accent Car CRD Diesel Model, gives trouble within one or two months of its purchase, would the consumer be satisfied with such a car? Whether the multinational company manufac-turing such a car, is justified in not replacing the car or refunding purchase price and instead engaging in protracted litigation? in our view, if a brand new car gives trouble within a few days of its purchase, the consumer would be dissatisfied. Further, in such cases, the manufacturing Company is not justified in protracting litigation, merely because it has the money power. Further, a person who purchases a vehicle, may be a luxury Accent car or a small car, would not be satisfied, if it is a defective vehicle. That the defect may not be a major one but the consumer loses satisfaction of having a new car. That loss of satisfaction would be much more in a case when the person buys the vehicle with his hard-earned money. Unfortunately, we have not developed the tendency of accepting the defects or defaults. By some measure or means, the tendency to accept the defects or defaults is required to be encouraged. Otherwise, delay in disposal of such cases defeats the rights and the consumer gets frustrated. On occasions, litigation is dragged on for taking undue advantage of delay in disposal. "

"undisputedly, all the multinational companies have adopted aggressive marketing for the sale of vehicles. Unfortunately, we have developed a practice/tendency of not admitting the defects in the vehicle and not replacing the same without contest. In other countries, even if there is aggressive marketing, defective vehicles are easily replaced. That practice is required to be adopted, at least, by the big companies like the Petitioner herein. Instead of disputing the undisputed facts, the Companies should resolve the matter by replacing the vehicles.

"in our opinion, from the admission made by the petitioner it is clear that the vehicle had gone to them on several occasions for repairs. In our view, there is no necessity for a new car to go to workshop ''on several occasions'' for repairs within a short span of one year of its purchase. As stated above, with such a vehicle the consumer would not be satisfied. Maybe that such defects may occur in one out of thousand vehicles but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle. It is also contended by the learned Counsel for the petitioner that the car was used by the complainant for more than one year and, therefore, appropriate deduction in the amount payable to the complainant be made. In our view, this submission can''t be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has lost interest. The car was required to be used after its repeated repairs. In such a case, it was the duty of the petitioner to replace the car as they were not in a position to rectify the defect. Hence, there is no question of deducting any amount in the present case. In this view of the matter, the order passed by the State Commission does not call for any interference in revision. As stated above, the petitioner has deposited a sum of Rs. 4 lakh which has been withdrawn by the complainant. Hence, the petitioner shall pay the remaining amount of Rs. 2,59,783 along with the sum of Rs. 25,000 awarded by the State Commission by way of compensation to the complainant, within a period of four weeks from today. The revision petition stands disposed of accordingly. There shall be no order as to costs.

The ratio of the above decision is squarely applicable to this case. In fact in this case vehicle was used only for a month. As the vehicle was purchased on 18. 6. 2004 and has been lying in the custody of the dealer since 12. 7. 2004 and as the multinational company has stopped manufacturing this model of the vehicle we are not issuing directions for the replacement of the vehicle. Keeping in mind the ratio of the above judgment of our Commission (supra) we hereby direct the respondents to jointly and severally pay a sum of Rs. 3,29,500 with 9% interest p. a. from 19. 7. 2004 till the date of payment. The respondent shall also pay Rs. 25,000 as costs. As the vehicle is already with the OP 1, complainant shall handover registration papers etc. to OP 1 after receipt of this amount.

THE Revision Petition is allowed accordingly. Revision Petition allowed.