T.NAGARAJU vs Tata Engineering and Locomotive Co. Ltd.

THIS is a complaint under Section 17 read with Sec. 12 of the Consumer Protection Act.

THE complainant has purchased a Tata Estate Model Automobile manufactured by the Opposite Parties 1 & 2 from the third Opposite Party which is the authorised dealer at Madras for a sum of Rs. 4,05,956/-. We took delivery of the vehicle on 3.9.92. Within a few days the complainant noticed several defects and they were brought to the notice of the third Opposite Party. THE vehicle was left with the third Opposite Party for the first service on 28.9.92 with the following defects. THE tyres had become frayed and worn out due to improper alignment. THE suspension was defective and the ball joints were not functioning properly. THEre was humming sound from the propellar shaft and there was vibration in the differential. THE servicing assembly was defective as there was a sense of wobbling during driving and noise emanated from it. THE window glasses were scratched. THEre was sweating in the headlight domes. THE engine oil consumption was abnormally high. THE fuel consumption was also high. THEre was rattling noise from all the doors. THE A/c was not functioning. THE wipers were not functioning properly. THE ignition switch was imperfect due to which this has starting problem. All the locks in the car were defective. But none of these defects were satisfactorily rectified. THE vehicle was sent for second service on 2.12.92. THE defects were again brought to the notice of the third Opposite Party, but they remained unrectified. THE complainant wrote to the third Opposite Party and also to the 1st and 2nd Opposite Parties. He has also sent lawyer''s notice. He requested Mr. B.B. Seshadri to inspect the vehicle and he has given his report on 10.3.93. None of the defects initially noted have been rectified. THE vehicle supplied to him suffers from basic manufacturing defects. THE complainant has therefore come forward with this claim for refund of the price or in the alternative to replace the defective vehicle with a new one, for interest on the amounts paid from the date of payment till delivery, for insurnace and vehicle tax payment. He has also claimed interest on the price amount and compensation in the sum of Rs. 1 lakh. The Opposite Parties 1 & 2 in their counter denied the allegations and adopted, in other respects, the counter statement filed by the third Opposite Party.

The third Opposite Party has filed a detailed counter. It is contended that the complainant is not a consumer that he has purchased this vehicle for the purpose of his business. It is admitted that the vehicle was delivered on 3.9.92. It is contended that the interest for the period upto 3.9.92 has been paid. The vehicle was brought for first service on25.9.92 at k.m. 4327. It was checked for rear left hand side power window switch which was fixed properly, the rear wiper was corrected as the electrical connection was loose, the inner spray jet of the front windshield was adjusted, engine oil consumption was found to be one litre for 1,500 k.m. and the vehicle was delivered on 28.9.92. The glass panes for the left and right hand doors were replaced; during the third service so also the centre joint bed and the ignition switch after the spares were received from the manufacturers. It came for second service on 19.9.92. This Opposite Party checked the head light assembly to replace the relay system. The complaint about excessive wear of the tyre was referred to the manufacturers who after inspection stated that in radial type tyre the inner edge wear was normal. The rear brake adjustment was corrected. For complaint of door rattling, the door mountings were tightened and grease applied. Wobbling of steering, wheel balancing was done. Defective suspension all the bolts and nuts were checked. The tinkering job was done for the bent on the right hand side door portion due to accident. Air Condition was charged. For the noise from the rear suspension, the bush was replaced. The vehicle was delivered on 27.10.92. It was brought again for service on 2.12.92. For the centre joint vibration, the rubber mounting bed was replaced. The front left hand wheel disc bend was attended. The dicky door rattling was corrected. The loose connection of the indicator light was corrected. Wheel balancing was done. The head light assembly was replaced. The vehicle was brought for next servicing on 11.3.93. Besides normal servicing, loose connection of the air conditioning lower was corrected. The front rear shock absorbers were replaced. The rear upper and lower link bushes numbering 8 were replaced. The electrical system was checked and loose connections were corrected. Three tyres were replaced as a measure of good will. The right hand side headlight assembly was checked for sweating and no water found entering into the headlight assembly. The diesel overflow tube was replaced. The lid of the wiper water container was replaced. After the 4th service the complainant did not bring the vehicle for servicing or for rectification. It is not correct to say that the vehicle suffered basic manufacturing defects. It is denied that the defects were not rectified. It is denied that the complainant was put to heavy expenses, mental agony or inconvenience. The complainant is not entitled to any relief.

EXHS. Al to A37 and B.1 to B11 are marked by consent. The complainant has filed a proof affidavit. Mr. K.R. Ramana Rao Chief Executive of the third Opposite Party has also filed a proof affidavit. The points that arise for determination are: (1) Whether the complainant is a consumer and is entitled to maintain this complaint? (2) Whether there has been any defects in the car purchased by the complainant? (3) To what relief, if any, is the complainant entitled?

POINT No. 1: The complainant has purchased Tata Estate Diesel Car manufactured by the Opposite Parties 1 & 2 from their local dealer, the 3rd Opposite Party at Madras. Exh. A29 is the proforma invoice dated 22.6.92. Exh. A21 is the sale invoice in favour of the complainant and Exh. A24 is, the delivery challan in favour of the complainant. Exh. A30 is the policy of insurance taken by the complainant. The price of the vehicle is Rs. 4,05,996/-. The complainant has filed this complaint alleging various defects in the car. It is contended by the Opposite Party that the complainant has purchased this car for his business purpose and he is not a consumer under Section 2(1)(d)(i) of the Consumer Protection Act. The car has been purchased by the complainant being his personal capacity and the fact that he may be using the car for travelling in connection with his business will not render, the purchase as one commercial purpose. The complainant is therefore a consumer. Advisedly the learned Counsel for the Opposite Party did not argue on this aspect. Point No. 2: The Tata Estate Car has been manufactured by the first Opposite Party. It is advertised as giving maximum pleasure and comfort. The cost of the vehicle itself is over Rs. 4 lakhs. The complainant has purchased this car and taken delivery thereof on 3.9.92 from the third Opposite Party. According to him, soon after the purchase, he find out various defects in the vehicle and within a month it had been sent to the third Opposite Party for rectification. It has come back to the third Opposite Party for 2, 3 and 4th services also. The condition of the car and the defects attended to can be seen from the job cards of the third Opposite Party which are marked as Exhs. B1, B2, B3 and B5 and B6. We shall refer to in detail to the works carried out by the third Opposite Party under these job cards.

EXH. B1 job card is dated 12.9.92 i.e. which is 9 days after the delivery of the vehicle. It refers to the following work. (1) Carry out PDII service EXH. B2 job card is dated 20.9.92 i.e. 17 days after the delivery of the vehicle. The details of the work done under EXH. B2 are as follows: (1) Carry on 1st service (2) Check right side & left side power window scratch (3) Check headlight (right side) (4) Fix properly rear left side power window scratch (5) Check rear wiper not working (6) Check front... wiper spraver (7) Check Engine oil consumption (8) Check Differential noise (9) Check ignition switch

EXH. B 3 job card is dated 19.10.92 and it refers to the following works : (1) Check headlight automatically on. (2) Check uneven tyre... (3) While applying break vehicle slops with vibration (4) Check all door rattling (5) Check steering wobbling (6) Check all lights and Dicky light (7) Check all suspension (8) Change LH & RH side power window glass (9) Compare to other vehicles, vehicle height is very less (10) Beet out RH side door portion, paint the tinkering portion (11) Check A/c. No. cooling (12) Cheek rear suspension noise (13) Carry out Ilnd service.

Item No. 10 is due to an accident and it cannot be a defect. EXH. B5 job card is dated 2.12.92 and it refers to the following works. (1) Change Ignition switch (2) Check joint vibration at 70 k.m. speed (3) Check front LH side wheel Disc- Bend (4) Check Dicky door rattling (5) Check front wheel uneven tyre wear (6) Repair left hand side power window glass (7) Check indicator light (8) Check steering wobbling (9) Check fuel consumption (10) Change LC assembly - water goes inside (11) Check engine oil consumption (12) Attend to water leakage from the roof side (13) Check steering pulling RH side (14) Check front headlight LH side (15) Touch up paint from LH side Mudguard

EXH. B6 job card is dated 11.3.93 refers to the following works. (1) Check A/c-Blower loose connection (2) Check rear suspension noise (3) Check front suspension noise (4) Check up all electrical system (5) Check Diesel consumption (6) Check engine oil consumption (7) Change all four tyres. (8) Check C. joint vibration (9) Change RH side Assembly (water goes inside) (10) Change Diesel overflow hose (11) Change wiper water container (12) Check front wind shield wiper water spray jet (13) Carry out 4th service

THE complainant has produced two certificates of inspection from one Mr. B.B. Seshadri. But the said Seshadri has not been examined and not has any affidavit filed by him. We are not therefore inclined to rely upon these certificates. A perusal of Exhs. B1, B2, B3, B5 and B6 showed that there has been innumerable defects in various parts of the car and these defects have been repeatedly attended to; particularly in respect of the doors, the power windows, electrical fittings, water leakage, differential and suspension noiser, wobbling, pulling of steering towards one side, A/c etc., All the 4 tyres of this new car have been replaced within 6 months and this is due to lack of proper alignment. THEse defects in this new car are certainly due to bad workmanship in the manufacture and cannot be brushed aside as minor problems; as contended by the learned Counsel for the Opposite Parties. THEre are defects as defined in Sec. 2(1)(f) of the Act which defines "defect" as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or as is claimed by the trader in any manner what soever in relation to any goods. THE various defects pointed out above which have been repeatedly attended to by the 2nd Opposite Party and with little success, are defects within the meaning of Section 2(1)(f) of the Act and the Opposite Parties have therefore sold to the complainant an unmerchantable vehicle. In this connection, we may here usefully refer to two English decisions on this aspect. In Bernstein v. Pamson Motors (Volden Green) Ltd. (1987 2 All ER 220) the question before the Court was whether defects in a new car amounts to unmerchantability. The Court observed that the relevant factor is whether the defect is of such a kind that it is in fact capable of being satisfactorily repaired so as to produce a result as good as new. Rougier J. also considered at this point, the vexed question of an accumulation of relatively minor defects. Remarking that this must be a question of degree, he went on to say that there could come a stage when "an army of minor, unconnected defects would be evidence of such bad workmanship in the manufacture, or on the assembly line generally as to amount in toto to a breach of the condition of merchantability". Then there were economic matters to consider in addition to mechanical ones. The assumption made by the Judge here was that the higher the price paid, the higher the legitimate expectation of the purchaser.

In Rogers v. Parish (Scarborough) Ltd. (1987 2 All ER 232) was again a case of merchantable quality of a car. The Court of Appeal followed the judgment in Bernsterin v. Pamson Motors (1987 2 All ER 220) that if a car was capable of starting and being driven in safety from one point to the next on public road it was not the case that it must necessarily be merchantable. Here the vehicle was described as new. Deficiencies which might be acceptable on a second hand vehicle were not to be expected in one purchased as new. Secondly, the description was important and hair "Range Rover" sets up expectations which might not be the same as those relating to an ordinary saloon car. Thirdly, the price was significant and at more than 16,000 the price level here was well above the level of the ordinary family saloon and the buyer was entitled to the value of the money.

THIS Tata Estate car at the value of Rs. 4,05,956/- is a new one and is advertised in the market as giving maximum driving pleasure and comfort. The price leval is well above the level of the ordinary car. A purchaser of this car is therefore entitled to expect the best possible comfort and performance. But these expectations are belied as the car had to go to the third Opposite Party repeatedly for carrying out repairs in almost all parts and the conclusion is irresistable that the vehicle sold to the complainant is a defective one and the defects rendered the car unmerchantable. THIS is therefore a case of sale of an unmerchantable car full of innumerable defects for which the responsibility lies on the Opposite Parties who are the manufacturer and the dealer. The points is found accordingly. Point No. 3:- The complainant has claimed refund of the price amount or replacement of the car with a new one free from the said defects. We are inclined to give the main relief and direct the Opposite Parties to refund the price. The complainant is not entitled to any interest on this amount as he has been using this car. He has claimed another sum of Rs. 25,000/- towards the costs incurred during the four services towards insurance & vehicle tax paid by him. Exhs. A 4 and A1 5 are the two bills under which Rs. 3,876-50 and Rs. 129/- are collected from the complainant towards repairing charges. The complainant is entitled to refund of this amount. He cannot claim any amount towards insurance or vehicle tax. There is no evidence that he visited Madras for the purpose of repairing the vehicle and incurred any expenditure on that ground. This claim is also negatived. The complainant has claimed Rs. 1 lakh for mental agony, inconvenience, financial loss and loss is business. We are inclined to award a sum of Rs. 50,000/- on this score.

IN the result, we order as follows: (1) The Opposite Parties shall refund to the complainant the price amount of Rs. 4,05,956/- and take back the Tata Estate Car purchased by the complainant. (2) The Opposite Parties shall refund to the complainant Rs. 4,005-50 towards repairs charges paid by the complainant. (3) The Opposite Parties shall also pay compensation in the sum of Rs. 50,000/- towards mental pain and agony. (4) All these payments shall be made within one month from the date of this order, failing which the amount shall carry interest at 18% p.a. from the date of default till payment. (5) The Opposite Parties shall also pay costs of Rs. 3,000/- to the complainant.

Complaint allowed with costs.