Tata Motors Ltd. And Anr. vs Ravikant Garg

BEING aggrieved by order dated 6.9.2010, passed by Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (short, "State Commission") petitioners/opposite party Nos. 1 and 2 have filed this revision petition. Brief facts are that respondent/complainant Shri Ravikant Garg purchased one Tata Indica Car on 31.12.1999 from the authorized dealer of petitioner No. 1, namely M/s. Hind Motors, Chandigarh for an amount of Rs. 2,90,064. The said car was got registered with the Transport Department vide Registration No. UP -07 -L -3863. There was 18 months warranty on this car. First free service of this car was got done from the service centre of the petitioner No. 1 situated at New Delhi. Thereafter, all next free services and repairs were got done from petitioner No. 2. But since very beginning, problems of excessive consumption of engine oil, rasping of tyres, problem of alignment and of gear were found in this vehicle. Petitioner No. 2 fulfilled the deficiency of engine oil from time and again and its price was also charged from the respondent. Tyres were also changed but the above defect could not be cured. On 17.12.2000, respondent sent a registered letter to petitioner No. 1 and informed him about the above defects of the vehicle but no action was taken. On 2.3.2001, again a letter was sent which was not replied by the petitioner No. 1. On 9.6.2001, respondent sent a registered notice to the petitioners through his Counsel. According to the respondent, after receiving the notice, petitioner No. 2 sent one of his representative Shri Rajiv Singhal to the respondent, who gave him assurance that petitioners are ready to replace the "Complete Sealed Engine" of the car and are also ready to extend the period of warranty and are also ready to remove other defects of the vehicle. In spite of the assurances given by the petitioner No. 2, no such action was ever taken and all/ oil defects of the vehicle remained as it is.

FINALLY , respondent filed a consumer complaint No. 210/2001 before District Forum, Dehradun. On filing the consumer complaint, petitioner No. 2 assured the respondent that they will replace the complete sealed engine with head and silencer head of his vehicle. On basis of this assurance, District Forum passed order on 27.3.2002 for withdrawal of the consumer complaint. However, according to the assurance given the petitioner No. 2, it did not replace the sealed engine of the vehicle. In this situation, respondent again filed a consumer complaint No. 67/2002 before the District Forum, Dehradun, which allowed the same, vide order dated 6.2.2008.

BEING aggrieved by the order of the District Forum, petitioners filed (First Appeal No. 61/2008) whereas, respondent also filed (First Appeal No. 58/2008) before the State Commission.

THE State Commission, vide impugned order dismissed the appeal of the respondent However, it partly allowed the appeal of the petitioners and amended order dated 6.8.2008, passed by District Forum to the extent that rate of interest was reduced from 9% to 7% p.a. Remaining order of District Forum was confirmed. Being aggrieved by the order of the State Commission, petitioners have filed this revision petition. In response, respondent has filed his objections along with affidavit.

WE have heard the learned Counsel for the petitioners and respondent who himself argued his case and gone through the record.

IT has been contended by learned Counsel for the petitioners that mandatory procedure under Section 13(1)(b) of the Consumer Protection Act, 1986 (short ''Act'') has not been complied with, as vehicle was never referred for inspection nor there is any expert report to show that there was any manufacturing defects in the vehicle. Other contention of learned Counsel for the petitioners is that respondent has withdrawn first complaint filed before the District Forum unconditionally. As such, second complaint filed by the respondent is barred by the principles of res judicata. Further, the complaint was filed beyond the period of limitation, as provided under Section 24(A) of the Act. It has also been contended that second complaint which has been filed after the expiry of warranty period, is not maintainable. In support of its contention, learned Counsel for petitioners has relied upon following judgments: 1. Classic Automobiles v. Lila Nand Mishra & Anr.,, I(2010) CPJ 253 (NC);

Sushita Automobiles Pvt. Ltd. Through its Manager v. Dr. Birendra N. Prasad,, III (2010) CPJ 130 (NC), decided by this Commission on 7.5.2010;

Tata Motors v. Khushal Singh, RP No. 1153 of 2005, decided by this Commission on 21.8.2009;

DVVG Satyanarayanan v. S.V. Raghavaiah, : AIR 1987 S.C. 406;

HVPNL v. Mahavir,, (2010)10 SCC 659;

HKN Swami v. Irshad,, 2005 (10) SCC 243;

Mahindra & Mahindra v. Thakurdesai,, II (1993) CPJ 225 (NC);

Swaraj Mazda v. P.K. Chakkarpore,, II (2005) CPJ 72 (NC);

9.Tata Motors v. Sunil Bhasin,, II (2008) CPJ 111 (NC);

10.TATA Motors v. Chandreshwar Kumar,, I (2007) CPJ 2 (NC);

11.BID Parry (India) v. Bab Benjamin Thushara,, I (1993) CPJ 279 (NC); Bharti Knitting v. DHL, : II (1996) CPJ 25 (SC) : (1996) 4 SCC 704;

12.SUSHEEL Kumar Gabgotra v. Maruti Udyog Ltd.,, II (2006) CPJ 3 (SC) :, (2006) 4 SCC 644;

13.UNITY & Trust v. Chairman & M.D., Bank of Baroda, : I (1995) CPJ 1 (SC) : (1995) 2 SCC 150;

14.Union of India v. Seppo Rally : III (1999) CPJ 10 (SC) : VII (1999) SLT 633 : (1999) 8 SCC 357; and

15.GODFREY Philips v. Aja Kumar, : II (2008) CPJ 5 (SC) : IV (2008) SLT 62 : (2008) 4 SCC 504.

ON the other hand, it has been argued by the respondent that present revision petition filed by the petitioners is barred by limitation. No application for condonation of delay has been filed. The impugned order was passed on 6.9.2010 and copy of the same has been supplied to the petitioners on 6.9.2010 through their Counsel. Subsequently, on 2.11.2010 petitioner No. 1 again applied for the certified copy of the impugned order. The petitioners had to file the revision petition on or before 5.12.2010 after the receipt of copy of the impugned order on 6.9.2010. However, present revision petition has been filed on 24.1.2011 i.e., expiry of the limitation period. Thus, revision petition is liable to be dismissed being barred by limitation.

ON merits, it has been contended by respondent that there is no question of res judicata since first complaint was not decided on merits. It was simply withdrawn. Further, there are concurrent findings of fact given by two fora below with regard to manufacturing defect. As such there is no illegality or infirmity in the order passed by both the Fora below. In support, respondent has relied upon following judgments: 1. S.P. Chengalvaraya Naidu v. Jagannath, : III (1993) BC 546 : AIR 1994 SC 853;

New India Assurance Co. Ltd. v. R. Srinivasan,, I (2000) CPJ 19;

Stare of UP and Another v. Jagdish Saran Agrawal and Others, : 2009 (1) AWC 1010 (SC);

Rajeev Hitendra Pathak & Ors. v. Achyut Kashinath Karekar & Anr., : IV (2011) CPJ 35 (SC) : VII (2011) SLT 404;

Sant Gajanan Maharaj v. Pratibha & Ors.,, IV (2008) CPJ 177 (NC); and

S. Girija Selvaraj v. The Proprietor, Sri Swarnambigai All India Travel Co.,, II (2013) CPJ 176 (NC) : (RP Nos. 3092, 3093 of 2012 decided on 4.2.2013 by this Commission).

DISTRICT Forum, in its order held: It is made clear from the above that since the day when this vehicle was purchased some defects have always remained in this vehicle and engine becomes over heated time and again, which is proved by the complainant by filing document No. 37B/2 on the file i.e. report of Rakesh Sarna and Company, who inspected the vehicle and found that on running up to 1000 KMs, one litre engine oil is being consumed by the vehicle, whereas normally in the new vehicle one litre engine oil should not be consumed for this distance. In this report, it has been mentioned that the manufacturing defect is there in this vehicle and there is possibility that the oil will go in the cylinder head.

It is clear from the above that there is high consumption of engine oil in this vehicle which is because of the manufacturing defect in it. A certificate of the Rakesh Sarna and Company has been filed and they have also given their affidavit at document No. 38A/1.

On behalf of the opposite parties a report of Shri Anil Singh has been filed in which he stated that high consumption of engine oil up to 1000 Kms is "illegible" 1.00 litre, whereas on the Job Card consumption of 1.00 litre engine oil up to 1000 Kms. has been mentioned, and its reason is also mentioned that the pollution of the vehicle is not under control, regarding which certificate has not been obtained, which is essential. An affidavit of Anil Singh has also been filed, who is a representative of the Government of India, and he has done B. Tech, and it is shown that he is an employee of Oberoi Motors.

It is made clear from the affidavit of the complainant and the Job Card filed by him that high consumption of engine oil is there in his vehicle and the vehicle in question is standing in the workshop of the opposite parties since 19.4.2002. The complainant withdrawn his case No. 210/2001, the document available on file as No. 33B/8, on the ground that the opposite party No. 2 was agreed to replace engine of his vehicle with a complete sealed engine along with head and silencer head. The above opposite party No. 2 is ready to cure these defects within the guaranty period.

Advocate for the opposite parties have not raised objection on this, but later on the opposite party is not ready to replace the engine. As is clear from the written statement and evidence of the opposite parses, they are willing to replace the defective parts only. According to the document No. 33B/8 available on file, it cannot be admitted that the above case is barred by the principle of res judicata because the above case was not decided on its merits.

The opposite parties submitted that the vehicle is standing in their workshop but the complainant does not want to take it back from there.

The above complaint is pending before the Forum since 2002. The vehicle is standing in the workshop for around six years, whereas the complainant has already purchased a new car.

District Forum, further observed:

In the present case during arguments this fact has come into light that the complainant has already purchased a new vehicle and his old vehicle is lying standing with the opposite parties since the year 2002. Opposite parties are not ready to change its engine, and the defects of the vehicle like high consumption of engine oil, engine noise, etc. are clearly establishes from the Job Card and as the opposite parties are not willing to change its engine and the complainant has already purchased a new vehicle.

Hence, orders for replacement of the vehicle are not justified, and hence because of the deficiency in service the complainant is entitled to get complete value of the vehicle from the opposite parties jointly and severally and his complaint is liable to be allowed.

ORDER

Complaint of the complainant under Section 12 of the Consumer Protection Act is hereby allowed and it is ordered that the opposite parties will pay to the complainant complete value of the vehicle i.e. an amount of Rs. 2,90,064 along with interest at the rate of 9% per annum from the date of filing of the consumer complaint till the date of actual payment and after receiving the above amount the complainant will hand over documents of the vehicle to the opposite parties, so that the opposite party may use that vehicle as they like. In addition to the above, the complainant is also entitled to receive Rs. 5,000 as cost of litigation and damages for harassment from the opposite parties.

THE State Commission in impugned order observed:

After thoroughly considering the facts of this case, initially we would like to show our opinion that the first appeal No. 58/2008, as filed by the complainant, has no force and it is not liable to be allowed. By allowing the consumer complaint the District Forum has directed the opposite parties to return the complete value of the vehicle i.e. Rs. 2,90,064, which is the main part of the prayer made in consumer complaint. Against the remaining reliefs of damages, compensation and cost of litigation etc. the amount can be assessed only according to the legal position. Hence, on this ground it is not possible to interfere in the impugned order and to allow the relief prayed for by the complainant.

We have also considered arguments of the learned Advocate for the opposite parties. In its order, the District Forum has mentioned facts of this case in detail and has done clear discussions from which coming to the conclusion that the disputed vehicle was suffered with manufacturing defects is not erroneous. In this regard, this fact is important that the complainant had already filed a consumer complaint in the year 2001 which was disposed of on the basis of the assurances given by the opposite party No. 2 [document No. 55 and document No. 93 in the record of First Appeal No. 61/2008 are available in the shape of concrete evidence in this regard]. In continuation of the same, the ground taken in the appeal and as has been argued by their learned Advocate that if any vehicle can be repaired by replacing its parts then the order for repayment of its complete value is not in accordance with law. In this regard, some judicial decisions have also been referred, which are as under - -

(i) Jay Malhotra v. M/s. Maruti Udyog Ltd. & Anr.,, III (2002) CPJ 95 (NC).

(ii) Jose Philip Mampillil v. Premier Automobiles Pvt. Ltd., & Anr., : I (2004) CPJ 9 (SC) : I (2006) SLT 855.

(iii) Pawan Motors & Others v. Jamna Sharma,, III (2004) CPJ 517.

It is correct, but if the consumer complaint filed in the year 2001 was disposed of on the assurances given by the opposite party No. 2 then certainly the said assurance has to be complied with in its entirely. If the opposite parties have not replaced the engine with complete sealed engine and have put reconditioned engine then it cannot be said that it has been done according to the assurances given. Reconditioned engine does not have any warranty period. Hence, the appeal filed by the opposite parties also does not have any force. But the rate of interest as prescribed by the District Forum as 9% per annum is slightly high and it should be 7% per annum and upto this extent the impugned order is liable to be amended.

Because of the above given reasons First Appeal No. 58/2008 is dismissed and First Appeal No. 61/2008 is partly allowed and the impugned order dated 6.2.2008 passed by the District Forum is amended up to the extent that the rate of interest is reduced from 9% per annum to 7% per annum. Remaining order of the District Forum is confirmed. Parties will bear their own cost of appeals.

FIRST question which arises for consideration is as to whether present revision has been filed within the period of limitation or not in this respect it may pointed out that impugned order was passed on 6.9.2010. Application on behalf of petitioners for certified copy of the judgment before the State Commission was filed on 6.9.2010 and the same was issued on that very day, which is apparent from Annexure I (page 40 of Vol. I) which are documents filed by respondent along with its objections. When petitioners have already applied and received the certified copy of the impugned order on 6.9.2010, we fail to understand as to what was the occasion for the petitioners to apply again for the certified copy of the judgment, vide its application dated 2.11.2010 asking for the certified copy of the judgment. On application dated 2.11.2010 filed before the State Commission, the petitioners were again issued certified copy of the judgment on that very day, i.e. on 2.11.2010. Thus, it is apparent that petitioners had misplaced the initial certified copy of the impugned order dated 6.9.2010 and that is why they filed second application dated 2.11.2010 for issuance of certified copy of the judgment. Since, impugned order was passed on 6.9.2010 and certified copy of the same was issued on that very day itself, the filing of the present revision petition on 24.11.2011, is clearly barred by limitation. No application for condonation of delay has been filed along with the present revision petition. Under these circumstances, present revision petition being barred by limitation and the same is liable to be dismissed on this short ground alone.

EVEN on merits, petitioners have no case. The first complaint filed by the respondent was not decided on merit and it was unconditionally withdrawn by respondent in view of the settlement made between the parties. When the settlement has not been followed by the petitioners, the respondent had no option but to file second complaint. Thus, under these circumstances, filing of the second complaint filed by the respondent against the petitioners, cannot be said to be barred by res judicata or being barred by limitation. As defects were persisting continuously in the vehicle, thus, cause of action is a continuous one.

IT is an admitted fact that there have been defects in the vehicle of the respondent. The vehicle has gone for service and for getting the defects removed on numerous occasions to the workshop of petitioner No. 2. Now, question which arises as to in the absence of expert opinion as per Section 13(1)(b) of the Act, the complaint of respondent is maintainable or not.

RESPONDENT in its complaint has categorically stated, that Shri Rajiv Singhal and Shri Raghav Oberoi, Authorized Representative of petitioner No. 2 gave him assurance to replace the engine of the vehicle in question with complete sealed engine along with head and silencer head. Relevant averments made by respondent in the complaint read as under.

THE complaint has parked this vehicle in the garage and is not running this vehicle and because due to the high consumption of engine oil, unexpected noise in the engine, non -proper suspension and excessive rubbing of tyres, the complainant is suffering financial loss as well as mental pain. On 9.6.2001, the complainant sent a registered notice to the opposite parties Nos. 1 and 2 through his Counsel Shri G.S. Bisht which was duly served upon the opposite parties.

AFTER receiving the above notice, the opposite party No. 2 sent its one representative Shri Rajiv Singh to the complainant on 9.6.2001, who met with the complainant and assured him that the opposite parties are ready to replace the engine of the said vehicle of the complainant with a complete sealed engine and they are also ready to extend the guarantee period and they are also ready to cure all defects mentioned in the said notice, but the complainant has to give an undertaking that he will not initiate any proceeding against the opposite parties.

THAT on the assurances of the authorized representation of opposite party No. 2 namely Shri Rajiv Singhal, the complainant has got received a letter dated 30.6.2001 to Shri Rajiv Singhal and on 20.6.2001 the complainant again given his vehicle to the opposite party No. 2 through Repair Card No. 9259, which was returned back to the complainant by the opposite party No. 2 on 22.6.2001. That on 27.6.2001 the complainant again gave his vehicle to the opposite party No. 2 through Repair Card No. 9480 for repairing the same and on 2.7.2001, the said vehicle was returned back to the complainant on the above repair order by the representative of the opposite party No. 2 with the remarks that A.C. Grill and engine are not available and the same will be replaced within guarantee.

OPPOSITE party No. 2 also took three tyres of the vehicle of the complainant for the claim within guarantee on 27.6.2001.

THAT because of the high consumption of the engine oil in the above Indica car of the complainant, the complainant is facing financial loss and the suspension of the Indica car of the complainant is also not fully repaired and its front wheels are creating noise and gear box is also not fully repaired and its front wheels are creating noise and gear box is also noisy and suddenly while driving the vehicle gears are slipped. There is also vibration in the A.C. Grill and cooling of the A.C. is also very low. On 17.7.2001, the complainant was coming to Dehradun from Vikas Nagar on the above said vehicle then in the way while the vehicle was running suddenly the engine of the vehicle started making noise loudly, which was got repaired from the opposite party No. 2 on 17.7.2001 through Repair Order No. 357, but the same noise is still coming from there.

ON 17.7.2001, complainant met authorized representative of opposite party No. 2 namely Shri Rajiv Singhal and Shri Raghav Oberoi with regard to their assurances given on 20.6.2001 and requested for replacing the engine of the said vehicle within warranty period and for repairing the other defects of the said vehicle; then the representative of the opposite party No. 2 avoided him and it seems that the opposite party No. 2 has intentionally gave false assurance to the complainant.

THAT from the above acts of the opposite party No. 2, the complainant is suffering great financial loss as well as mental agony. That on 27.7.2001, the complainant sent a legal notice to the opposite party Nos. 1 and 2 through his Counsel Mr. G.S. Bisht but the same was not replied by the opposite parties Nos. 1 and 2.

THE complainant filed a complaint No. 210/2001 titled as Ravi Kant Garg v. M/s. Tat Engineering Co. Ltd., before the Hon''ble District Consumer Disputes Redressal Forum.

THAT in the above cases notices have duly been served upon opposite parties Nos. 1 and 2. In the above complaint case opposite party No. 2 did a compromise with the complainant and according to which they were ready to replace his engine with complete sealed engine along with head and silencer head. On the basis of the above compromise, the complainant keeping faith on the talk of the opposite party No. 2, again given his above vehicle to it for making it correct and on the basis of that compromise the above complaint was disposed of on 27.3.2002. Thereafter, when the complainant gone to the opposite party No. 2 for taking his vehicle back he found that his vehicle was still not repaired and they replaced its engine with a reconditioned engine, which was contrary to the compromise. His vehicle is standing in the workshop of the opposite party No. 2 for more than two months from which he is facing financial loss and mental agony. Hence, on 27.4.2002, he again sent a notice to the opposite parties and then he filed the present complaint before the Hon''ble Forum. That when the complainant went to the opposite party No. 2 to take back his above car then the complainant saw that the opposite party No. 2 has not replaced the engine of the said vehicle with a complete sealed pack engine and head and silencer head but he replaced it with a reconditioned (repaired) engine, which is contrary to the compromise.

THAT the car of the complainant is standing in the workshop of the opposite party No. 2 for more than two months because of which complainant is facing financial loss and harassment. 17. Though, petitioner No. 2 in its written statement has denied that any assurance was given by their Authorized Representative Shri Rajiv Singhal and Shri Raghav Oberoi to this effect. It will be pertinent to mention here that there is nothing on record to show that petitioner No. 2 ever examined these two persons as it witnesses before the District Forum. It is well settled that persons can tell lie but documents cannot. In this regard, it will be fruitful to go through the application for withdrawal filed by respondent No. 2 for the first complaint, before the District Forum. True copy of application for withdrawal of the first complaint filed by respondent, is at page No. 84 of the paper book which is reproduced as under: Before District Forum, Consumer Protection, Dehradun Consumer Complaint No. 210 of 2001 Ravi Kant Garg v. M/s. Tata Engineering Co. Ltd., Etc.

Sir,

The applicant/complainant submits as under:

That the opposite party No. 2 has agreed to replace the engine of the Indica car of the complainant with a complete sealed engine along with head and silencer head and they are also agreed to remove other defects of the above car of the complainant and the opposite party No. 2 has agreed to do the above work within guarantee period.

That the complainant has already given his vehicle to the opposite party No. 2 to do the above works as agreed in para No. 1 above and hence, the complainant does not want to proceed further with this complaint case.

It is prayed accordingly.

Sd/ - Dehradun (Ravikant Garg) Dated : 27.3.2002 Complainant

Not opposed Sd/ -.

In this application/respondent has categorically stated that petitioner No. 2 has agreed to replace engine of Indica car with a complete sealed engine along with silencer head and they have also agreed to remove other defects of the car of the respondent and petitioner No. 2 has agreed to do the above work within the guarantee period. Further, it has been stated that respondent has already given his vehicle to petitioner No. 2 to do the above work as agreed and he does not want to proceed with the complaint case.

On the right side of this application, it bears the signatures of the respondent, whereas on the left side of this application it has been mentioned as ''Not Opposed'', ''Sd/''. This clearly goes on to show that respondent on the basis of assurance given by petitioner No. 2 that they would replace the engine of respondent''s car and remove all other defects, he withdrew the first complaint. Admittedly, application for withdrawal of the first complaint was never opposed by the petitioners. Since, manufacturing defects were there in the car of the respondent as per petitioner''s admission, hence, there was no need for any expert opinion. It is well settled that admitted facts need not be proved further.

It is well settled that under Section 21(b) of the Act, the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : II (2011) CPJ 19 (SC) : IV (2011) SLT 303 : 2011 (3) Scale 654 has observed:

Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of Act. Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs. 10,000 (Rupees ten thousand only),

Petitioners are directed to deposit the cost of Rs. 10,000, by way of demand draft in the name of ''Consumer Welfare Fund'' as per Rule 10A of Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List on 5.7.2013 for compliance.