TATA ENGINEERING AND LOCOMOTIVE COMPANY LTD. vs T.NAGARAJU

M /s. Tata Engineering & Locomotive Company Ltd., Bombay, their Regional Sales Office at Madras and M/s. V.S.T. Motors Ltd., Madras are Appellant Nos. 1, 2 and 3 respectively and Mr. T. Nagaraju, Krishnagiri is the Respondent.

MR . T. Nagaraju purchased a Tata Estate Model Automobile on 3-9-1992 from Appellant No. 3 for a price of Rs. 4,05,956/-. However, he found a large number of defects including improper alignment of tyres, defective suspension, noise, wobbling and high consumption of fuel. He brought the car for servicing on 25-9-1992 pointing out all these defects to Appellant No. 3. The car was again left with the Appellant No. 3 on 28-9-1992 for removing the defects. The second servicing of the car was done on 2-12-1992 and the third on 11-3-1993, when the tyres were replaced. Shri T. Nagaraju also produced a report from Mr. B.B. Seshadri who, according to him, inspected the vehicle and gave his report on 10-3-1993. This report mentioned a number of defects which have been dealt with in an elaborate manner in the Order of the State Commission. All the contentions of Shri T. Nagaraju, the Respondent, were contested by the Appellants who stated that there were no manufacturing defects and the car was fully merchantable automobile. The defects pointed out at the time of servicing were removed promptly and, therefore, there was no cause for grievance on the part of Shri Nagaraju. The Appellants also contended before the State Commission that Shri Nagaraju is not covered by the definition of ''Consumer'' under Section 2(1)(d)(i) of the Consumer Protection Act, 1986. The State Commission, after going through the record, in an elaborate order held that since the car was purchased on personal account and for the personal use of Shri Nagaraju he was a consumer within the definition under Section 2(1)(d)(i) of the Consumer Protection Act, even if he was using this car in connection with his business. As regards defects, the Commission gave a long list of them and examined the job cards prepared by the Appellant No. 3 at the time of servicing. Quoting two English decisions viz., in Bernstein v. Pamson Motors (Volden Green) Ltd. [1987 (2) All E.R. 220] and in Rogers v. Parish (Scarborough) Ltd. [1987 (2) All E.R. 232], the State Commission held that the sale of this car was "of an unmerchantable car full of innumerable defects for which the responsibility lies on the Opposite Parties who are the manufacturer and the dealer". Having held that the State Commission made the following award : (1) Refund of Rs. 4,05,956/- by the Appellants after taking back the car purchased by the Respondent. (2) Payment of Rs. 4,005-50 towards repair charges paid by the Complainant. (3) A compensation in the sum of Rs. 50,000/- towards mental pain.

All these payments were to be made within a period of one month from the date of the Order after which these amounts shall carry interest at the rate of 18 per cent per annum from the date of default till payment.

IN appeal, all the three Appellants maintained that the decision of the State Commission was not correct as the defects pointed out by them were either not there and whatever defects were there, were of normal nature and were removed promptly at the time of servicing. After hearing the learned counsel from both sides we felt that it would be appropriate to have the car examined from an agreed technical expert so as to determine as to whether the vehicle in question suffered from any manufacturing defect and, if so, the nature and extent of those defects and the approximate amount that would be necessary to set right those defects. Accordingly on 31st August, 1994, we, vide our Order, asked the counsel appearing on both sides to submit the name of an agreed expert acceptable to them on the next date of hearing. The name of Central Institute of Road Transport, Pune was suggested and agreed to by both the parties and we, therefore, vide our Order dated the 21st September, 1995, directed the C.I.R.T., Pune, to depute an expert to conduct inspection of the vehicle at Krishnagiri as expeditiously as possible and to make a detailed report to this Commission regarding the exact condition of the said vehicle as to the existence or otherwise of any manufacturing defect in the vehicle. The C.I.R.T., Pune, vide their letter of 20th October, 1995, regretted their inability to inspect this vehicle stating that the laboratories of their Institute evaluate automobile components fitted on heavy duty vehicle and that they do not have expertise in evaluating manufacturing defects of Tata Estate. Thereafter, vide our Order of 27th November, 1995, the inspection of the vehicle in question was entrusted to Automotive Research Association of India, directing them to make a detailed report with regard to exact condition of the said vehicle and existence of any manufacturing defects in the vehicle. The Automotive Research Association of India submitted their report dated April 11, 1996, after the examination of the vehicle in the presence of both the parties. They have observed as follows : Summary of Observations : 1. V.S.T. Motors Ltd. is a well established automobile dealer having vast experience for more than 45 years and since 1956 they are Authorised Sales and Service Centre for Telco vehicles. They have all necessary equipments for carrying out the necessary servicing and well-equipped to render the sales and service of vehicles including emission. They have trained manpower and personnel and are able to produce all necessary documents of services rendered to Mr. T. Nagaraju. 2. As per the statement given by Mr. T. Nagaraju, the vehicle was kept idle in the premises since 17-1-1993. However, the last servicing was carried out by M/s. V.S.T. Motors Ltd. on 11-3-1993. Even if we consider the date of 11-3-1993, the vehicle was not operated for 3 years. However, in spite of this the engine started in first attempt. 3. Mr. T. Nagaraju was not able to provide any documentary evidence to substantiate the statement of carrying out maintenance from 16,500 Kms. to 20,848 Kms. when the vehicle was in his custody. 4. The fuel consumption and oil consumption of the vehicle was checked, measured and recorded which is acceptable as per specifications and it is observed that it is even better compared to new vehicle. The results are enclosed in Annexure VII.

THE vibrations was observed on the floor and in the drive line. The hatch back door got jammed and giving rattling noise. The vibrations of the vehicle has contributed more due to deterioration of almost all rubber components such as engine mounts, gear box mounts, suspension bushes, pad mounts etc. Hence, unless until these are replaced the further examination of vibrations could not be made. The letter given by Telco in this connection is enclosed at Annexure V. Diesel, oil, brake fluid, clutch fluid samples were collected. The laboratory reports reveals that the sedimentation in diesel, engine oil is excessive and the other specifications have also deteriorated.

THE vehicle was kept idle for last 3 years. No servicing, greasing, oiling was carried out and due to aging effect of the rubber components, most of the rubber components are perished. Hence, further observations could not be made. Due to this, the wheel alignment of the vehicle was out of limit and the vehicle have experienced wobbling and pulling of left side to some extent. However, the vehicle was driven for 223 Kms. without any difficulty.

VIDEO shooting and photographs of all major events have been taken from taking the possession of vehicle till the vehicle is handed over to Mr. T. Nagaraju. Finally they have concluded as follows : CONCLUSIONS The performance of the vehicle with respect to fuel consumption, oil consumption, engine startability was satisfactory. The chart showing fuel and oil consumption of old and new vehicle is given below:

THE vibration and pulling of vehicle was observed due to reasons mentioned above, however, prima facie no reason could be observed giving a room to conclude that the performance of vehicle is not acceptable on the grounds of manufacturing defect.

THE vibrations observed on the drive line, hatch back door could be minimised or controlled by replacement of components, sub-assemblies. It may not be appropriate to conclude that the vibrations are due to the manufacturing defect as no physical cracks, wear deterioration is observed and the vehicle was run for 223 Kms. All the components, sub-assemblies were functioning even after almost 3 years and under the conditions stated above. This report has been signed by Mr. M.K. Chaudhary, Senior Deputy Director of the Automotive Research Association of India. It may be mentioned here that the A.R.A.I. is a research institution of the automotive industry with the Ministry of Industry of the Government of India.

After the submission of this report by the A.R.A.I., Shri T. Nagaraju submitted an affidavit alleging bias on the part of Mr. Chaudhary in conducting the inspection of the vehicle in question and stating that he and his representatives were threatened to accept their terms on the pain of giving an unfavourable report to the Commission. We have gone through this Affidavit carefully and are unable to persuade ourselves about the contentions made therein. We are of the considered view that after the appointment of a research institution for the inspection of the vehicle, with the consent of both the parties, it is not open and correct on the part of either of them to raise issues of bias etc. We accept the report of the A.R.A.I. in respect of this vehicle and, therefore, set aside the Order of the State Commission and allow the appeal. There will be no order as to costs.