TATA MOTORS LTD vs Keshav Mani

THIS revision is directed against the order of the State Commission Himachal Pradesh, Shimla dated 24.04.2012 in Appeal No. 174 of 2009, 182 of 2009 and 2001 of 2009 preferred by the opposite party M/s Goyal Automobiles, M/s Dinesh Automobiles and complainant.

BRIEFLY stated, the facts relevant for the disposal of the revision petition are that respondent no.1 Keshav Mani filed a consumer complaint in District Forum Shimla alleging that she purchased a truck manufactured by the petitioner Tata Motors Limited from M/s Dinesh Automobiles, sub dealer of M/s Goyal Automobiles, authorised dealer for Tata Commercial Vehicles. The truck was financed by opposite party no.4 M/s Tata Motors Finance. The said truck was purchased in August 2005 and it started giving trouble within 2 -3 months. This fact was brought to the notice of opposite party no.2 M/s Dinesh Automobiles and on the advise of sub dealer, the truck was taken to Vasco Motors Chandigarh, the authorised service station of Tata Motors. It is the case of the complainant that Vasco Motors Chandigarh on inspection of the vehicle informed the complainant that there was a manufacturing defect in the vehicle. The complainant, therefore, approached opposite party no.2 and 3 to replace the truck but in vain. The complainant thus filed consumer complaint alleging deficiency in service on the part of the petitioner as well as its authorised dealer and sub dealer, namely, opposite party no. 2 and 3 and claimed replacement of the vehicle besides payment of damages to the tune of Rs.2.00 lacs for harassment and Rs.10,000/ - against litigation expenses.

THE opposite parties contested the complaint by filing separate replies. The allegation of manufacturing defect in the truck were denied. The petitioner Tata Motors took the specific plea that consumer complaint is not maintainable because the truck was purchased by the complainant for commercial purpose. Learned District Forum during course of proceedings appointed Local Commissioner, namely, Works Manager, H.R.T.C., Rampur Bushehar to inspect the vehicle and submit a report. The District Forum on consideration of the report of the Local Commissioner as also other evidence on record came to the conclusion that there were certain defects in the truck and directed opposite party nos. 2 and 3 to replace the truck and also to pay Rs.50,000/ - as damages and Rs.3000/ - as cost of litigation to the complainant.

BEING aggrieved of the order of the District Forum, opposite party no. 2 and 3 approached the State Commission Himachal Pradesh in appeal. The complainant also filed an appeal seeking compensation. The State Commission disposed of the above three appeals by a common order and directed as under: "(i) Vehicle, in question, shall be replaced by a brand new truck of the same make and specifications by opposite party No.1, within 30 days.

(ii) A sum of Rs.2.00 lacs, shall be paid by way of damages with interest, at the rate of 6% per annum, by opposite parties No.1, 2 and 3, to the complainant whose liability with respect to this direction shall be joint and several.

(iii) A sum of Rs.10,000/ -, shall be paid by opposite parties No.1, 2 and 3, as costs of the complaint and the present appeals and they shall be jointly and severally liable to pay this amount of money.

(iv) Complainant shall get the registration of the defective vehicle transferred in the name of opposite party No.1, who may then take the same away from the site, where it is presently parked.

(v) New vehicle which will be made available to the complainant by opposite party No.1, shall be pledged by the complainant with opposite party No.4, as security for repayment of loan, in place of the old defective vehicle, on the same terms and conditions with regard to which new papers/documents shall be prepared and repayment schedule shall also be prepared anew."

BEING aggrieved of the order of the State Commission, the petitioner M/s Tata Motors Ltd. has preferred this revision petition.

MR . Aditya Narain, Advocate for the petitioner has contended that impugned orders of the foras below are not sustainable because both the foras below have failed to exercise their jurisdiction by not deciding the preliminary objection of the petitioner to the effect that the complainant was not a consumer as she had purchased the truck for commercial purpose. On merits, learned counsel for the petitioner has contended that perusal of the impugned order would show that both the orders directing replacement of truck are based upon the report of the Local Commissioner i.e. Works Manager, H.R.T.C., Rampur Bushehar. Learned counsel has referred to the said inspection report dated 14.05.2007 and submitted that in the said report, there is no conclusion indicating manufacturing defect in the truck. Therefore, the order directing replacement of truck is not sustainable.

LEARNED counsel for the complainant on the contrary has argued in support of the impugned order and submitted that impugned order does not suffer from any material irregularity or jurisdictional error and as such there is no reason to interfere with the said order in exercise of revisional jurisdiction.

WE have considered the rival contentions and perused the record. On perusal of the copy of the written statement of the petitioner / opposite party no.1, it transpires that petitioner in its written statement has taken a specific objection that the complainant is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986, because she had purchased the truck in question for commercial purpose. Neither the District Forum nor the State Commission has ventured to decide that issue. Therefore, this is a clear case of non exercise of jurisdiction by the foras below and as such their orders cannot be sustained. Otherwise also, on perusal of the impugned orders it transpires that while directing replacement of the vehicle, both the foras below have been influenced by the inspection report of the Works Manager, H.R.T.C, Rampur Bushehar dated 14.05.2007. On perusal of the inspection report, we find that it is not clear whether the inspection was conducted after due notice to the opposite parties. The Local Commissioner has reported that on inspection he found that truck body channel was cracked, there was excessive engine oil consumption due to leakage and as told by the complainant, automizer pipes of the truck broke frequently which resulted in higher consumption of diesel. The report is silent if the defects found can be termed as manufacturing defect or can be rectified. So far as the later two defects are concerned, those do not appear to be so serious which cannot be rectified. During the course of arguments, we asked the counsel for the parties to explain what is the effect of cracking of truck body channel and whether or not it could be rectified / easily repaired. Counsel for the parties could not give any satisfactory response to the above question. Under these circumstances, we are of the view that even the conclusion of the foras below that the truck suffers from manufacturing defect is not properly substantiated by the evidence. Thus, in order to arrive at appropriate conclusion, some more evidence is required to explain whether the cracking of truck body channel can be termed as manufacturing defect.

IN view of the discussion above, we are of the opinion that impugned orders of the foras below cannot be sustained and the matter needs further evidence for proper adjudication of the dispute raised in the complaint. We accordingly allow the revision petition; set aside the impugned orders and remand the matter back to the District Forum with the direction that District Forum shall permit the parties to lead further evidence, if they so desire, on the aspect of manufacturing defect in the truck as also whether or not, the complainant is a consumer and decide the matter Denovo without being influenced by the observations made in this order or the order of the State Commission. Parties to appear before the concerned District Forum on 06.05.2015.