Malwa Automobiles Pvt. Ltd. and Another Vs. Sunanda Sangwan and Others - Court Judgment

Excerpt:
consumer protection act, 1986 - section 21(b) - deficiency in service ? two revision petition have been filed against the order passed by the state commission which while dismissing both the appeals filed by the petitioners, the order passed by district forum in consumer complaint allowing the said complaint was upheld ? court held that the district forum reached the conclusion that the complainant is entitled to refund of the whole cost of the vehicle from the date of filing the complaint till realisation. this order was confirmed by the state commission in appeal. the vehicle has since been lying with the dealer because, according to the complainant, the dealer failed to remove the defects in the vehicle. under these circumstances, it is absolutely clear that in order to provide justice to the consumer, the manufacturer and the dealer should either replace the vehicle or refund the cost of the vehicle to the complainant along with interest from the date of filing of the complaint, or provide the vehicle in absolute ?defect-free? condition to the complainant, duly certified by an appropriate technical authority - in fact, in the circumstances of this case, it was the duty of the dealer and the manufacturer to play a pro-active role and remove the defects in the vehicle, leaving no element of ambiguity about its fitness from technical point of view ? the court is inclined to give an opportunity to the dealer and the manufacturer, jointly and severally, to make attempt to remove the defects in the vehicle, make it ?defect-free? and have it certified from the technical personnel of the manufacturer ? petition allowed. (paras 8, 9, 10, 11, 12) cases relied on: 1. maruti udyog ltd. versus susheel kumar gabgotra and anr.? [(2006) 4 scc 644] 2. manager, premanchal motors pvt. ltd. and punjab tractors ltd. versus ramdas s/o shri khayaliram and ors.? [ii (2009) cpj 98 (nc)] 3. tata motors ltd. versus ashok kesharilal saraf?, [fa no. 524 of 2005 decided on 12.01.2009] 4. tata engineering and locomotive co. ltd. and ors. versus bachchi ram dangwal and anr.? [ii (2009) cpj 90 (nc)] 5. tata motors ltd. versus shri kushal singh and ors.? [rp no. 1153 of 2005 decided on 21.08.2009] 6. sushila automobiles pvt. ltd. versus dr. birendra narain prasad and ors.? [manu / cf / 0076 / 2010] 7. classic automobiles versus lila nand mishra and anr.? [i (2010) cpj 235 (nc)] 8. c.n. anantharam versus fiat india ltd.? [2011 (84) alr 253], comparative citation: 2013 (4) cpr 114 dr. b.c. gupta, member these two revision petitions have been filed under section 21(b) of the consumer protection act, 1986 against the impugned order dated 01.10.2012 passed by the haryana state consumer disputes redressal commission (for short the state commission) in fa no. 1704 and 1731 of 2011, vide which while dismissing both the appeals filed by the petitioners, the order dated 28.10.2011 passed by district consumer disputes redressal forum, karnal in consumer complaint no. 822/2010, allowing the said complaint was upheld. the consumer complaint in question was filed by sunanda sangwan, who is respondent no. 1 in both the petitions. the petitioner malwa automobiles pvt. ltd. is the authorised dealer of tata motors ltd. and is op no. 1 in the complaint. in rp no. 297/2013, the petitioner is tata motors ltd., which is manufacturer of the vehicle in question and has been made op no. 2 in the complaint. this single order shall dispose of both the revision petitions and a copy of the same be kept on each file. 2. brief facts of the case are that the complainant, who is a professor in the op jindal university, sonepat, purchased a tata indigo cs lxi car from op no. 1 malwa automobiles pvt. ltd. on 14.09.2010 for a consideration of rs.4,77,900/. as alleged, the car started creating abnormal sound from the engine, within two days of purchase. a telephonic complaint was registered with the sales person sanjeev kumar of op no. 1. the complainant, thereafter, took the car to tayal motors, authorised dealer of op no. 2 at faridabad on 04.10.2010, where service was done and the engineers assured that the car will run smoothly. however, the defect of abnormal noise in the engine continued and the engine also emitted bad smell, like smoke coming out of burnt rubber. the factum of abnormal noise has been mentioned in the job cards also. the complainant obtained second opinion from markandeshwar service garage at pipli, kurukshetra, where she was told that the vehicle suffered from manufacturing defect, which could not be removed by repairs. further, when the complainant was going to attend to her job, the car got jammed on the road in the way. it was taken to op no. 1 on 14.10.2010 and it remained in their workshop for three days. the car was again brought to op no. 1 on 19.10.2010, when it was sent back after test drive only. again the car was taken to op no. 1 on 20th october and the job cards do mention about the problems in the running of the car. the defects in the car could not be removed by the engineers of op no. 1, despite many requests. op no. 1 refused to replace the car or refund the price of the same. the complainant requested that the car be replaced with a new car or in the alternative, an amount of rs.4,77,900/- be paid to her along with interest @12% p.a. from the date of the purchase of the car till realisation, and in addition, demanded a sum of rs. 2 lakh for mental harassment etc. and rs.22,000/- as litigation expenses. the district forum vide their order dated 28.10.2011 came to the conclusion that there was manufacturing defect in the vehicle in question. they ordered that the cost of the vehicle, amounting to rs.4,77,900/- should be refunded to the complainant along with interest @9% p.a. from the date of filing of the complaint, i.e., 29.10.2010 till realisation. two appeals were preferred against this order, one by the dealer, malwa automobiles ltd. and the other by the manufacturer, i.e., tata motors ltd. the state commission vide impugned order dated 1.10.2012 dismissed both the appeals, upholding that the deficiency in service on the part of the ops stood proved. it is against this order that the present revision petitions have been made by the ops. 3. at the time of hearing before us, learned counsel for the petitioner malwa automobiles pvt. ltd. submitted that the complainant never complained of any manufacturing defect in the car till the date of her filing complaint before the district forum. the documents on record produced by the complainant showed that on 04.10.2010, within 20 days of purchase of car, the vehicle had travelled 2570 kms. the car had travelled 3258 km within 30 days and 4395 km within one month and 7 days of purchase. the complaint made after running of the car of 2570 kms related to adjustment of timing belt tensioner and fuel filters. after running 4395 kms, there were complaints relating to noise and were made with the intention of leaving the car in the workshop of the petitioner. it was unfair on the part of the complainant to write on the job card on 20.10.2010, that it was her 7th visit in one month. she refused to take the vehicle back, although a request was made by the petitioner to do so. regarding the second opinion taken from markandeshwar service garage at pipli, kurukshetra, the learned counsel stated that this opinion was taken after six months. referring to the report of er. j.k. sharma, automobile engineer, surveyor and loss assessor, learned counsel stated that it was not clear why it took him one month to prepare the report after inspection. 4. the learned counsel for the petitioner tata motors ltd. stated that there was no manufacturing defect in the vehicle, as the vehicle had covered long distances during the first few days of its purchase. the learned counsel has drawn our attention to condition no. 2 of the terms and conditions of the warranty issued by tata motors that their obligation under the warranty was limited to repairing or replacing, free of charge, such parts of the car, which in their opinion were defective. learned counsel placed reliance on the orders passed by the honble supreme court in œmaruti udyog ltd. versus susheel kumar gabgotra and anr.? [(2006) 4 scc 644], saying that the duty of the petitioner was to replace or repair the defective parts only. learned counsel also referred to the order passed by the national commission on 07.08.2012 in œtata motors limited versus navin nishchal? [rp no. 2207 of 2007 decided on 07.08.2012], in which same view had been taken by the national commission. learned counsel further placed reliance on the following cases in support of his arguments:- (i) œmanager, premanchal motors pvt. ltd. and punjab tractors ltd. versus ramdas s/o shri khayaliram and ors.? [ii (2009) cpj 98 (nc)] (ii) œtata motors ltd. versus ashok kesharilal saraf?, [fa no. 524 of 2005 decided on 12.01.2009] (iii) œtata engineering and locomotive co. ltd. and ors. versus bachchi ram dangwal and anr.? [ii (2009) cpj 90 (nc)] (iv) œtata motors ltd. versus shri kushal singh and ors.? [rp no. 1153 of 2005 decided on 21.08.2009] (v) œsushila automobiles pvt. ltd. versus dr. birendra narain prasad and ors.? [manu / cf / 0076 / 2010] (vi) œclassic automobiles versus lila nand mishra and anr.? [i (2010) cpj 235 (nc)] 5. learned counsel vehemently argued that there was no evidence of any manufacturing defect in the vehicle and they had no liability towards replacement of car or making refund to the complainant. referring to the report of er. j.k. sharma, automobile engineer, surveyor and loss assessor, learned counsel stated that the vehicle had not been given even a test drive by the said engineer. a perusal of the order of the district forum also shows that there was no manufacturing defect in the vehicle. 6. learned counsel for the respondent based his arguments on the report of er. j.k. sharma, automobile engineer, surveyor and loss assessor, in which it had been stated that there were manufacturing defects in the vehicle and the said vehicle was not fit for an innocent buyer. it was not safe to drive this vehicle on busy roads and it could endanger the lives of the passengers and the passers-by. learned counsel stated that the opposite party had allowed er. j.k. sharma, automobile engineer to inspect the vehicle and hence they could not challenge his report at this moment. the vehicle faced problem during the first month of purchase, showing thereby that there was an inherent defect in the vehicle at the time of purchase. 7. learned counsel referred to the judgement passed by the supreme court in œc.n. anantharam versus fiat india ltd.? [2011 (84) alr 253], in which it has been stated that if manufacturing defect was found in the vehicle by an expert, the petitioner is entitled to get the refund of the whole amount alongwith interest. 8. we have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. a perusal of the orders passed by the state commission and district forum reveals that they have placed reliance on the job cards dated 14.10.10 and 20.10.2010 made by the personnel of the op, when the vehicle was brought to them with complaints of certain defects. it has been alleged by the complainant that the vehicle started creating abnormal noise from the engine within two days of the purchase. the job cards recorded on 14.10.2010 and 20.10.2010 contain the following entries:- œjob card dated 14.10.2010 timing belt tensioner renew (including timing) +idle bearing noise fulefilters cartridge renew+ engine missing exterior treatment “ 3 m. job card dated 20.10.2010 compression check + roof light chk gear linkage lubricate tighten + gear liver noise. replace door striker adjust + diggi noise check ac system and determine fault + blower fan noise disassemble/assemble front seat sliding mechanism with parts+ rear seat noise washing and vacuuming engine oil and filter change. 9. further, there is a report submitted by er. j.k. sharma, automobile engineer, surveyor and loss assessor dated 15.5.2011, in which the detailed observations and opinion has been given as follows:- œthis report was prepared after inspecting the vehicle in the workshop of m/s. malwa automobiles in the presence of both the parties and discussion with them and also making a test drive of the vehicle. 1. the test were made at various speeds on a plain road to check the smoke emission, engine noise and engine vibration. 2. the vehicle was taken on g. t. road for road test and the supervisor mr. amit pawar drove the vehicle. the vehicle was started and the idle running was checked. the idle running was not proper and there was excessive smoke and abnormal noise. 3. tappet noise was detected at 3000 rpm while the vehicle was static. tappet is either tight or loose and this may be the cause. 4. there was engine vibration that may be due to the fault in setting of electronic system particularly for ecu and electronically controlled nozzle or there may be defect in sensor or in wiring. 5. high temperature was noted at speed of 80-85 km and the vehicle stopped. this may be due to engine problem and this is a manufacturing defect and it can lead to road accident endangering life of the passengers. 6. axel noise during u turn from left side noise indicating the shaft is faulty. 7. a bluish smoke was noted and this may be due to less power of engine causing bluish smoke as noted by the buyer. consumption of engine oil needs further diagnosis. 8. gear box gives constant humming noise at various speeds. (reported in the complaint) 9. the generation of power did not perform properly; hence the pickup was not proper. this may be due several manufacturing problems relating to the malfunction in fuel pump, nozzle, and controlling sensor or all of them. these are matters of further diagnosis. 10. the shifting of gears were not smooth (requires further diagnoses) 11. even it is a new vehicle but there was leakage of steering box and engine oil. 12. the body vibration in tata cars is very common but particularly in this case it may be due to abnormal engine vibration. conclusions 1. in consideration to the above mentioned observations which are of fundamental in nature, i am of the firm opinion that the performance of the tested vehicle was highly unsatisfactory and the said vehicle clearly malfunctions due to multiple reasons, and have defaults that may not be repairable, especially in the long run. 2. the manufacturing defects in the vehicle are present and the vehicle is not fit for an innocent buyer. 3. even if seemingly repaired in the short term, these may cause serious harm to the car engine and body and the user overtime. 4. the manufacturing related defects present in the vehicle have the potential to seriously affect the life of the vehicle, and harm and endanger the lives of the passengers and of the passers-by. the vehicle is not be safe to be driven on busy roads and at best would require very frequent visitations to the automobile workshops. the report is being issued being an automobile engineer and having a long experience in automotive field. ? 10. at this stage, it shall be worthwhile to quote the definition of defect as contained in the section 2(1)(f) of the consumer protection act, 1986, which reads as follows:- œ"defect" means 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 under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;? 11. the main argument taken on behalf of the petitioners is that there was no manufacturing defect in the vehicle and whatever defects were pointed out by the complainant, they were attended to and repaired from time to time and hence, they were not liable to replace the vehicle or to refund the price of the vehicle to the complainant. however, a perusal of the job-cards recorded by the technical personnel of the dealer, the report of the er. j.k. sharma, automobile engineer, surveyor and loss assessor and the definition of defect as contained in the consumer protection act, 1986 do indicate that it was a defective vehicle, although in the strict technical parlance, there could be two opinions whether the same could be called a manufacturing defect or not. the district forum reached the conclusion that the complainant is entitled to refund of the whole cost of the vehicle, i.e., rs.4,77,900/- along with interest @9% p.a. from the date of filing the complaint till realisation. this order was confirmed by the state commission in appeal. the vehicle has since been lying with the dealer because, according to the complainant, the dealer failed to remove the defects in the vehicle. under these circumstances, it is absolutely clear that in order to provide justice to the consumer, the manufacturer and the dealer should either replace the vehicle or refund the cost of the vehicle to the complainant along with interest from the date of filing of the complaint, or provide the vehicle in absolute defect-free condition to the complainant, duly certified by an appropriate technical authority. in fact, in the circumstances of this case, it was the duty of the dealer and the manufacturer to play a pro-active role and remove the defects in the vehicle, leaving no element of ambiguity about its fitness from technical point of view. the basic spirit behind the enactment of a benevolent legislation like the consumer protection act, 1986, involves better protection of the interests of consumers and the basic job given to the authorities set-up under the act is to provide speedy justice to the consumer and remove his helplessness vis-à­¶is powerful business class, within the ambit of law. we are, therefore, inclined to give an opportunity to the dealer and the manufacturer, jointly and severally, to make attempt to remove the defects in the vehicle, make it defect-free and have it certified from the technical personnel of the manufacturer himself, not below the rank of a general manager. this task may be taken in hand and accomplished within a period of two months from today; including the issuance of the necessary certificate. we, therefore, order accordingly in modification of the orders passed by the state commission and the district forum. 12. fix the case for submitting compliance report on 16.12.2013.