Union Territory Consumer Disputes Redressal Commission, Chandigarh
Hon'ble Mr Justice K K Srivastava, President; Mrs Devinderjit Dhatt & Maj. Gen. S P. Kapoor, Members Apex Motors – Appellant
Versus
Neelam Rattan – Respondent
Appeal Case Nos. 333, 337, 357 of 2003	Decided on 27.8.2003

 

2.	The complainant's case in brief is that she bought a Tata Indica car on 24.7.1999 from O.P. No.2 for Rs. 2,89,512/-. The complainant bought this car by taking a car loan of Rs. 2,50,000/- from Tata Finance Limited. The car carried a 18 months unlimited kilometres warranty. However, only a few days after the purchase of the car there was a leakage of oil. On 30.7.1999 O.P. No.2 did the first service, changed the oil seal, oil filter and mobil oil and charged the complainant Rs. 540/-. Since the complainant had to go to Kota to meet her sister and the problem of oil leakage persisted there, the car was taken to Service Centre, A-12 (a), Indra Prastha Industrial Area, Kota (Rajasthan), an authorized service center of O.P. No.1 i.e., the manufacturer, on 20.8.1999. In addition to oil leakage, the car had problem of uneven rapid tyre grazing and brakes were not functioning properly. Wheel balancing, brake oil change and diesel filter change were done and the complainant was charged Rs. 230/-. As the problem persisted, the complainant took the vehicle to O.P. No.3 where once again oil filter and diesel filter were changed and more engine oil was put and the complainant was charged Rs. 764/-. As the problem persisted, the complainant again took the car to O.P. No.3 on 11. 9 .1999, who repeated the same action and charged Rs. 775/-. Again, on 1.11.1999, the car was taken to O.P. No.3 who once again repeated the earlier actions and charged Rs. 564/-. On 11.11.1999, while traveling by the car, there was a sudden brakes failure and the complainant had a narrow escape so the complainant again took the car to O.P. No.3 and pointed out the problem with brakes, excessive consumption of engine oil and starting trouble and the car was left with O.P. No.3 for repairs. The brake disc of the car was repaired and the complainant was charged Rs. 3,300/-. On 4.12.1999, O.P. No.3 changed right- hand side shocker of the car. On 14.12.1999, when the complainant started the car smoke came out of the engine, the coolant came out and the temperature of the car rose very high. It was noticed that the radiator fan motor was not working. The car was taken to O.P. No.2 and it took 9 days to change the dead fan motor, as the same was not readily available with O.P. No.2. Because of all this, in spite of having spent Rs. 3.5 lakhs on the car the complainant had to travel in buses/taxis to attend wedding of her niece, which was scheduled on 18.12.1999.
3.	In spite of regular servicing and taking all due precautions, front tyres of the car were damaged and when this was brought to the notice of O.P. No.3, only tyre rotation was done. Later, on advice of O.P. Nos. 2 and 3, she got the tyres replaced on 13.1.2000 with new ones purchased for Rs. 6,800/-. On the assurance of O.P. Nos. 2 and 3 that the money spent on new tyres will be reimbursed by O.P. No.1, the old (original) tyres were handed over at the office of O.P. No.1 in Sector 17, Chandigarh. However, the cost of the tyres has not been reimbursed.
4.	On 18.1.2000, the car was taken to O.P. No.3 with heater not working and brakes of the car not working properly. O.P. No.3 did the wheel alignment and changed three heater plugs. On 22.2.2000, Poly-B-Belt 730, 740 of the car was changed by O.P. No.3. On 11.2.2000, O.P. No.3 changed two wheel rims of the car with the hope that the brakes would start functioning properly.
5.	On 21.2.2000, the car met with an accident near Rajpura and husband of the complainant had a narrow escape but the car was badly smashed. On the advice of Mr Chadha, Service Engineer of O.P. No.1, the car was taken to M/s Broadways Auto Engineers, 75, Industrial Area, Phase-I, Chandigarh who gave a rough estimate of Rs. 7,595/- for repairs.
6.	Based on the above, the complainant avers that the accident has been caused due to defective brake system. The car is a defective piece not manufactured properly. There is a deficiency in service. Therefore, in the complaint she had sought the following reliefs:
	(a)	The O.Ps. be directed to either refund entire purchase price of car and accessories along with interest @ 18 per cent per annum from the date of purchase till payment or replace the car with a new defect-free car.
	(b)	The O.Ps. be directed to pay rupees one lakh for mental agony and harassment etc.
	(c)	Rs. 11,000/- be awarded as costs of litigation.
	The O.Ps. version is that the car in question, though bought as a private car, has been run as taxi and that it had met with two accidents and these facts have been concealed in the complaint. It is also their version that the warranty ceases to be applicable on vehicles after an accident. It is strongly denied that the car has any manufacturing defect. The complainant, during her visits to O.P. Nos. 2 and 3, has only been charged for consumables, which are beyond the purview of the warranty. The problem with the radiator fan and Poly-B-Belt occurred mainly due to the accident but as a goodwill gesture, these were replaced under the warranty. There is no defect in the heater but the dust had accumulated on the plugs due to excessive driving and the same was removed. Oil, oil filter and diesel filter changes were done due to normal maintenance and as far as brakes were concerned, there is no defect in brakes and only brake pads and not brake discs were changed. As regards tyres, it has been stated that the wear and tear of tyres was mainly due to poor maintenance and one tyre had a deep cut and the complainant has been paid Rs. 3,315/- for three tyres on pro-rata basis. It is also the version of the O.Ps. that the accident on 21.2.2000 occurred due to negligent driving and not due to brake failure which is evident from the fact that the post-accident repairs did not include any repairs to the brakes. O.P. No.2 has stated that Rs.3,300/- charged from the complainant were due to repairs done for the accident of the car in which its lower portion and suspension system were damaged. Moreover, even the shocker, which was damaged due to the accident met by the car, was replaced under the warranty as a goodwill gesture.
7.	Learned District Forum-II in their analysis of the case rightly held that claimed interest @ 18 per cent per annum cannot be added to the relief claimed for the purpose of working out pecuniary jurisdiction of the Forum and rightly repelled the contention of the O.Ps. that the complaint is beyond pecuniary jurisdiction of the Forum. It also rightly held that O.P. No.1 being the manufacturer of the car is surely liable if the car is defective and there is deficiency in service. Furthermore, guided by the judgment of Hon'ble Supreme Court in Dr. J J Merchant v. Srinath Chaturvedi, learned District Forum-II overruled the submission of the O.Ps. that since the case involves complicated questions of facts and law, it should be relegated to the Civil Court.
8.	On analysis of evidence, the learned District Forum based on Annexure C-6 i.e. job card of O.P. No.2 which mentions problem of oil leakage, believed the version of the complainant in this regard. However, it also came to the conclusion that the car is being used very extensively which is unusual for a private car and that change of oil filter, oil and diesel filter during various visits of the car to O. P. Nos. 2 and 3 were part of routine minor maintenance. The learned District Forum also agreed with the version of the O.Ps. that repairs costing Rs.3,300/- were due to the accident met by the car and noted that even though the right hand shocker changed on 4.12.1999 was replaced free, it was damaged due to the accident met by the car or excessive use of the car and not due to any manufacturing defect. As regards defect in the fan motor, the learned District Forum is of the view that the complainant was provided reasonably prompt service even by bringing one of the parts from Pune and doing the repair and moreover, this does not disclose any manufacturing defect. Further, the learned District Forum was of the view that since O.P. No.3 replaced three tyres on pro-rata basis by making payment of Rs. 3,315/-, alleged defect in the tyres, if any, stands rectified and that the complainant has been more than compensated. In the view of the learned District Forum, there was no deficiency in service on the part of O.Ps. even in dealing with the problem of heater because this problem was rectified by the O.P. by cleaning dust from the glow plugs and this problem could arise after the vehicle had already done as many as 25,441 kilometres of running. Learned District Forum-II was of the view that even the Poly-B-Belt got damaged due to wear and tear caused by quite extensive use of the car as it had done 28,344 kms. of running when this problem arose. Hence, it held that there was neither any defect in the car nor any deficiency in service. Discussing the accident of 21.1.2000, learned District Forum-II, referring to the D.D.R. No. 14 lodged by the husband of the complainant, has highlighted the cause of accident mentioned therein. The DDR, inter alia, mentions that a tractor-trolley loaded with bricks was moving in front of the car of the complainant and there was a glare of light of the vehicle coming from opposite direction. The tractor-trolley broke down and came to an abrupt halt and so the front portion of the car of the complainant struck into the rear of the trolley and thus got damaged. There is no mention of any brake failure of the car or any defect in the brake system in the DDR. The learned District Forum-II, therefore, rejected the version of the complainant that the accident had been caused on account of defectiveness or failure of brake system. It opined that on the car meeting with the accident on 21.2.2000, the warranty ceases and held that this clearly suggests that the complainant has not come to the Forum with clean hands as she has put a distorted version of the Rajpura accident on 21.2.2000. Finally, the learned District Forum drew a strong presumption against the complainant, as no expert evidence to prove any manufacturing defect was placed on record and came to the conclusion that there were some minor or ordinary defects in the car, which are bound to develop when the car is extensively used but the O.Ps. on their part have been prompt in rendering service to the complainant and therefore, it held that no deficiency in service has been committed by the O.Ps, whenever the car was taken to their workshop. The learned District Forum also is of the view that the complainant has indulged in gross exaggeration of her claims. Nonetheless, the learned District Forum held that the complainant suffered mental and physical harassment as well as some financial loss due to frequent visits of the car to the workshops of the O.Ps. for minor/ordinary defects. In view of the foregoing, the learned District Forum partly allowed the complaint and directed the O.Ps. to pay Rs. 40,000/- to the complainant as compensation with interest @ 9 per cent per annum from the date of filing this complaint i.e. 8.6.2000 till payment. It also directed the O.Ps. to pay, Rs. 1,000/- as costs of litigation.
9.	Aggrieved by this order, O.P. No.3, O.P. No.1 and O.P. No.2 respectively filed Appeal Nos. 333, 337 and 357, all of 2003. Appeals having been taken on board, record of the complaint case was summoned from District Forum-II and notices were sent to the respondents. Mr P K Kukreja, Advocate appeared on behalf of all the appellants whereas Mr A S Walia, advocate represented the respondent/complainant. Mr P K Kukreja, Advocate submitted that even though the learned District Forum has held that there is neither any manufacturing defect nor any deficiency in service, yet the O.Ps. have been burdened with payment of Rs. 40,000/- as compensation and Rs. 1,000/- as costs. He, therefore, prayed that the impugned order be set aside.
10.	Mr A S Walia, Advocate, though defended the impugned order, yet, submitted that the learned District Forum had ignored the fact that the vehicle had met with an accident twice due to manufacturing defect in the car. Also, the facts that the complainant was charged money even during free services and that the car was kept in workshop for 10 days for repair to fan motor have been ignored, nonetheless he prayed for upholding the order.
11.	We have heard the learned counsels for the parties and have also gone through the record of the complaint case. The main points that need discussion are three i.e. Is there any manufacturing defect in the car? Were the O.Ps. deficient in providing service? And what, if any, is the liability of O.Ps. in the case?
12.	Discussing first the issue of manufacturing defect, it is settled law that an expert opinion should substantiate the allegation of manufacturing defect. However, in the present case no such evidence is on record. Also, the job cards on record do not mention or indicate any manufacturing defect. The job cards either pertain to normal/routine check up, change of oil/filters etc. during free service or indicate very minor problems and in one case of some repairs to the lower portion of the car consequent to an alleged accident wherein the complainant had to pay Rs. 3,330/- for repairs and cost of material. The defects, such as, non-functioning of heater due to dust on glow plugs, problem with fan motor, brake pads, grazing tyres and defect of Poly-B-Belt cannot be termed as manufacturing defect in the car and such defect can occur in a very extensively used car as the one in instant case. We are, therefore, in consonance with the view held by the learned District Forum that the complainant has failed to prove any manufacturing defect in the car.
13.	Coming next to the deficiency in service. It is on record that whenever the car was taken to the workshop of O.P. No.2 or O.P. No.3, it was attended to promptly and there is no allegation of any delay in attending to the car other than the time when fan motor was dead and it took O.P. No.2, ten days to repair the car. But even in this case the O.Ps. got the damaged part from Pune and there is no evidence of willful delay on the part of O.Ps. It is also on record that the O.Ps. did not charge the complainant for anything other than consumables which are not covered under warranty, and moreover, fan motor, two rims, right side shocker and Poly-B-Belt were replaced free of charge. Even in the case of tyres, an amount of Rs. 3,315/- was paid to the complainant on pro-rata basis. The amount of Rs. 3,300/- charged from the complainant is for the damage caused to the lower portion of the car due to the first accident. Hence, it is proved by evidence on record that the complainant was always promptly attended to whenever the car was taken to the workshop of O.P. Nos. 2 and 3 and that obligation of warranty regarding defective parts was discharged by the O.Ps. in full without any delay by replacing defective parts free of cost. We are, therefore, of the considered view that the learned District Forum was correct in holding that there is no deficiency in service on the part of O.Ps
14.	Finally before discussing the issue of liability for any compensation, two observations of learned District Forum-II are very relevant to be considered. At para-27 of the impugned order based on their analysis, the learned District Forum has held that the respondent/ complainant has indulged in gross exaggeration of her claims and more importantly at Para 23 it has been held that she has distorted the version of the Rajpura accident which had occurred on 21.2.2000 and, therefore, did not come to the Forum with clean hands. These observations alone are adequate to non-suit the complainant because it is settled law that he who seeks equity must come to the Forum with clean hands. This notwithstanding, liability under the Consumer Protection Act, 1986 can only be fastened if either manufacturing defect or deficiency in service is established but, in this case even though learned District Forum has categorically held that there is no manufacturing defect in the car and warranty liability has been discharged by the O.Ps. by free replacement of defective parts, such as right hand shocker, rims, Poly-B-Belts and fan motors etc. and that there is no deficiency in service on part of the O.Ps. yet, the O.Ps. have been burdened with payment of Rs. 40,000/- with interest @ 9 per cent per annum from 8.6.2000 till payment and Rs. 1,000/- as costs. Moreover, this has been done wherein its own evaluation and analysis' of the case, the learned District Forum is of the view that the complainant did not come to it with clean hands. This award of payment of compensation and costs by the impugned order, therefore, under the given facts and circumstances of this case in the backdrop of evidence on record, in our considered view, does not stand legal scrutiny and is not legally just and fair and, therefore, cannot be upheld.
15.	Based on the above, all the three appeals i.e. Nos. 333, 337 and 357, all of 2003 are allowed. The impugned order is set aside and the complaint is dismissed. Parties are directed to bear their own costs of litigation. We also direct that draft No. 272737 dated 23.6.2003 drawn on Central Bank of India for Rs. 20,500/- submitted by the appellant be returned to them after obtaining a receipt for the same and this receipt along with the photo copy of the aforesaid draft be placed in the case file for record.

Copies of this order be sent to the parties free of charges.

Appeals allowed.