T. KARUNAKARAN vs TATA ENGINEERING (HEAD OFFICE) & ORS.

This revision is directed against the order of the Tamilnadu State Consumer Disputes Redressal Commission, Chennai (in short, "the State Commission") whereby the State Commission allowed

the appeal preferred by the opposite parties, resulting in dismissal of the complaint and dismissed the appeal of the petitioner/complainant against the order of the District Forum seeking modification of the order of the District Forum.

Briefly stated facts relevant for the disposal of the revision petition are that the petitioner filed consumer complaint No.CC/523/2005 in District Forum, Chennai (South) alleging deficiency in service on the part of the respondents/opposite parties.

The case of the complainant is that on 19.1.2001 he purchased Tata Indica DLS-M-Euro II model from opposite party No.3 for a sum of Rs.3,81,452/-, besides of Rs.5,500/- for other charges. The petitioner also paid Rs.2,450/- for extended warranty of 18 months. On 17.5.2005 while the complainant was driving the car its engine got over heated and the temperature gauge needle touched the red mark. The complainant, thus, took the help of mobile service of the opposite parties for rectification of the defect. However, on 19.5.2005 the same problem of over-heating of engine occurred. The complainant took the car to service station run by opposite party No.3 for check-up and repairs and he was chaged Rs.1843.49P for rectification of defect including replacement of spare parts. On 21.5.2005 while the complainant was returning from Gudiatham to Chennai the engine temperature of the car once again touched the red mark. The complainant got the defect rectified temporarily by local mechanic who informed that radiator fan of the car was not functioning properly. It is further alleged that thereafter he left the car at the service station of the opposite party No.3 on 23.5.2005 for another check-up but the defect could not be rectified and the problem kept on occurring time and again. According to the complainant persistent overheating of engine is because of manufacturing defect in the car. Therefore, he raised the consumer dispute seeking replacement of the defective car by a new car.

Opposite parties No.1 & 2 are manufacturer and the dealer of the subject car. In the written statement opposite parties No.1 & 2 have admitted that the complainant had purchased the subject car in September, 2001 with 18 months warranty plus extended warranty of 18 months. According to opposite parties No.1 & 2 after having availed the free services the complainant instead of getting the vehicle serviced from authorized service stations availed of services of various other service stations. The allegation regarding manufacturing defect has been denied and it is pleaded that the complainant was careless in handling the vehicle particularly noticing the engine temperature shown at temperature gauge while driving.

Respondent No.1 in its written version admitted that the subject vehicle was entrusted to their company for service/repair on 17.5.2005, 19.5.2005 and 23.5.2005. Respondent No.3 pleaded that the car of the complainant was properly serviced and its delivery was given to the complainant on each occasion after his having been satisfied. Respondent No.3 also pleaded that on examination it found the car in good condition and there was no deficiency in service on their part.

Learned District Forum on consideration of the pleadings and the evidence produced on record allowed the complaint and directed the opposite parties No.1 & 2 to replace the defective

engine of the subject car with a new one and also to pay compensation of Rs.2 Lakhs to the complainant for mental agony and inconvenience caused. Opposite party No.3 was directed to pay Rs.20,000/- as compensation.

Being aggrieved of the order of the District Forum, the opposite parties preferred first appeal No.14/2008. The complainant being dissatisfied with the relief granted also filed first appeal No.98/2008 seeking enhancement of compensation. The State Commission vide impugned order dismissed the appeal of the complainant for enhancement and allowed the appeal of the opposite parties, set aside the order of the District Forum, Chennai (South) and dismissed the complaint. This has led to filing of the revision petition.

Learned counsel for the petitioner has contended that the order of the State Commission is not sustainable because the State Commission has failed to appreciate that the consumer buys a car with huge investment with a view to utilize it for a long term. It is argued that State Commission has failed to appreciate that within a span of four years the car started giving trouble of engine heating which could not be rectified despite of the fact that the complainant approached the opposite party No.3 service station thrice on 17.5.2005, 19.5.2005 and 23.5.2005. Thus, it is a clear indication that there was some manufacturing defect in the car which the authorized service station was unable to rectify. Thus, the State Commission ought to have dismissed the appeal preferred by the opposite parties and allowed the appeal by modifying the order of the District Forum directing the replacement of the defective car with a new car.

Learned counsel for the opposite party on the contrary has argued in support of the impugned order. It is contended that the State Commission has rightly appreciated the evidence. There is no evidence on record which could suggest manufacturing defect in the car. Neither the job cards detailing the complaint mentioned by the complainant, have been produced nor any technical expert has been examined to establish that the car was actually suffering from inherent defect which could not be rectified. Learned counsel has further argued that perusal of the record would show that by 23.5.2005 even the extended warranty of the car had expired and it had already driven 74,504/- kms. This in itself is an indication that there was no manufacturing defect in the car. It is further contended that whatever trouble had occurred in the car is due to careless handling of the car by the complainant for which the opposite parties cannot be blamed. Learned counsel has thus urged us to dismiss the revision petition.

We have considered the rival contentions and perused the material on record. On careful perusal of record, we do not find merit in the contention of learned counsel for the petitioner. Undisputedly, subject car was purchased in September, 2001. It was having manufacturer''s warranty of 18 months plus further warranty of 18 months. The defect in car was noticed for the first time on 17.5.2005 i.e. after the expiry of extended warranty. Further on perusal of the copy of service invoice (Ext. A-1) we find that on 23.5.2005 when the subject vehicle was taken to opposite party No.3 service station it had already done mileage of 74,504 kms. Not only this, perusal of the service invoices (Ext. A-25 & A-29) would show that the subject vehicle had undergone accidental repairs during July, 2002 and February, 2003 meaning thereby that subject vehicle had met with an accident twice and as per the service invoice (Ext. A-29) second accident had taken place somewhere around February, 2003, which damaged frame radiator support, front bumper, AC system and hood cell etc. Thus, looking into the fact that the over-heating of the engine was noticed after the expiry of warranty period and after the above-noted dates of accident, it can be safely inferred that the aforesaid defect has been caused because of accident. Under these

circumstances in absence of any expert report to the effect that the vehicle suffers from manufacturing defect or the relevant job cards which could have thrown light on the nature of the defects pointed out by the complainant while leaving the car at the service station, we cannot find fault with the order of the State Commission which is a well-reasoned and based upon the careful appreciation of the evidence.

Learned counsel for the petitioner has failed to point out any material irregularity or jurisdictional error in the impugned order which may call for interference in exercise of the limited jurisdiction under Section 21 (b) of the Consumer Protection Act, 1986.

In the result, revision petition is dismissed with no order as to costs.