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In the given facts and circumstances of the case, we partly allow the appeal, by setting aside the direction to replace the defective car with a new car and direct the appellant to refund to the respondent the entire cost of the car minus depreciated value at 10% as the consumer has used the car for more than two years, and pay Rs.50,000/- as compensation as to the mental agony, harassment, physical discomfort and emotional suffering suffered by the appellant. This compensation shall include the cost of litigation.”In conclusion, we partly allow the revision petition and set aside the impugned order of the State Commission and that of the District Forum. However, in view of the foregoing discussion, we deem it appropriate to direct the petitioner to pay to the complainant/respondent 1 compensation of Rs.40,000/- for the harassment, mental agony and expenditure suffered by him since the purchase of the car till the replacement of the engine assembly and cost of Rs.10,000/-, including these proceedings. This payment may be made within four weeks of the date of this order.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

Appeal to the Great Spirit

Appeal to the Great Spirit (Photo credit: cliff1066™)

NEW DELHI

 

REVISION PETITION NO. 2207 OF 2007

[Against the order dated 22.12.2006 of the Delhi State Consumer Disputes Redressal Commission, Delhi in First Appeal No. 771 of 2006]

 

Tata Motors Limited

Passenger Car Business Unit No. 402

4th Floor, Tower A, Signature Towers                              Petitioner

South City I, N.H. 8

Gurgaon-122001

 

versus

 

1. Navin Nishchal

104-I, Street No.11

Balbir Nagar Extn., Shahdara

Delhi-110032

…      Respondents

2. Sanya Motors

Regd. Office, B-90, Hill View Apartment

Vasant Vihar

New Delhi-110057

 

BEFORE:

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI     PRESIDING MEMBER

HON’BLE MR. ANUPAM DASGUPTA                MEMBER

 

For the Petitioner                                 Mr. Aditya Narain, Advocate,

Ms. Astha Tyagi, Advocate &

Ms. Shuchi Singh, Advocate

For Respondent 1                                        Ms. Jhuma Bose, Advocate

For Respondent 2                                        Mr. Gaurav Gupta, Advocate

 

Pronounced on  7th August, 2012

 

O R D E R

ANUPAM DASGUPTA

1.     This revision petition is directed against the order of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in First Appeal No. 771 of 2006. By this order, the State Commission partly allowed the appeal by observing as under:

“7.    In the given facts and circumstances of the case, we partly allow the appeal, by setting aside the direction to replace the defective car with a new car and direct the appellant to refund to the respondent the entire cost of the car minus depreciated value at 10% as the consumer has used the car for more than two years, and pay Rs.50,000/- as compensation as to the mental agony, harassment, physical discomfort and emotional suffering suffered by the appellant. This compensation shall include the cost of litigation.”

 

2.     Respondent 1 in this petition was the complainant before the District Consumer Disputes Redressal Forum II, Sheikh Sarai, New Delhi (in short, ‘the District Forum’) with the allegation of manufacturing defects in the Tata Indica car purchased by him from M/s Sanya Motors (authorized dealer of Tata Motors, manufacturer of the car). The allegations related to starting problem, high consumption of fuel and engine oil as well as emission of excessive smoke. On 26.09.2004 (just after two months of purchase of the car) the complainant had to take the car to the dealer for repairs. Despite repairs, the same problem recurred and the complainant had to take the car back to the dealer on 23.10.2004.  During 03.11.2004-03.02.2005, the car was taken several times with the same problems which could not be rectified. The complainant then contacted the Manager (Customer Care) of Tata Motors and took the car to the latter’s workshop on 03.03.2005, whereupon he was told that the engine of the car had been changed and there would be no problems. However, the problems still continued, which led him to issue a legal notice to the opposite parties and thereafter filing a consumer complaint, in which he prayed that the opposite parties be directed to replace the defective car with a new one or refund the cost thereof and also pay compensation of Rs.2 Lakh for harassment and inconvenience.

 

3.     The opposite parties contested the complaint before the District Forum and denied all the material allegations. In addition, OP 1 pleaded that if there was any manufacturing defect, the responsibility would attach not to it but the manufacturer, viz., OP 2. OP 2, in turn, contended that the defects pointed out by the complainant were attended to promptly from time to time during the period of warranty and only charges for consumable items were realized. OP 2 also accepted that the engine assembly had been changed but claimed that it had done so with the consent of the complainant.

 

4.     After considering the pleadings and evidence of the parties, the District Forum concluded that no expert evidence was necessary to establish that there were some manufacturing defects in the car, which were beyond rectification as evidenced by the repeated failures of the opposite parties to control the high consumption of engine oil and excessive emission of smoke. The District Forum, accordingly, directed OP 2 to replace the defective car with a new car of the same model with a fresh warranty and also awarded compensation of Rs.10,000/- to the complainant for the harassment and inconvenience suffered by him and Rs.2,500/- as cost of litigation.

5.     It was this order of the District Forum which was challenged in appeal by OP 2 before the State Commission with the result already mentioned.

 

6.     We have heard Mr. Aditya Narain for the petitioner (OP 2), Ms. Jhuma Bose for Respondent 1/complainant and Mr. Gaurav Gupta for Respondent 2/OP 1 and also considered the documents produced on record.

 

7.     Mr. Narain has mainly submitted as under:

(i)     By its impugned order, the State Commission actually left the appellant (petitioner here) worse off by enhancing the relief to Respondent 1/complainant. The total financial implication of the award of the District Forum added up to Rs.3,82,978/- whereas that of the State Commission entailed a liability of Rs.3,85,580/- for the appellant/petitioner. Secondly, the State Commission permitted a depreciation of 10% though the car had admittedly been in use with the complainant for more than two years by the time the State Commission passed the impugned order. Therefore, the depreciation ought to have been 15%.

(ii)    The State Commission ought to have passed a reasoned and speaking order, taking into account the documents on record and the contentions raised in the memorandum of appeal, which it failed to do.

(iii)    The direction to refund the price of the car was in violation of clauses 2, 5, 9 and 10 of the warranty. This was also against the law laid down by the Supreme Court in the case of Maruti Udyog Ltd. v Susheel Kumar Gabgotra & Another [(2006) 4 SCC 644].

(iv)   The State Commission awarded the compensation of Rs.50,000/- without any basis or on the strength of any documentary or oral evidence produced by the complainant.

(v)    The procedure laid down under section 13(1)(c)-(g) of the Consumer Protection Act, 1986 (hereafter, ‘the Act’) to investigate allegations of defects in a product was not followed and failure to do so amounted to violation of those mandatory provisions of the Act.

(vi)   The allegation of high consumption of engine oil was not borne out by the job cards dated 03.02.2005, 02.03.2005, 25.03.2005 and 03.04.2005. As regards the excessive emission of smoke, the Fora below failed to take into consideration paragraphs 13 and 11 of the reply filed by the petitioner, in that the emission of smoke was on account of use of adulterated diesel and not any manufacturing defect in the car.

 

8.     On the other hand, Ms. Bose has submitted on behalf of Respondent 1/complainant that it was rightly observed by the District Forum that the car had not run smoothly even for a month after its purchase and that it had to be taken to the workshop of the opposite parties almost every month with one problem or the other. According to Ms. Bose, the car was still lying parked at the residence of the complainant because it could not be at all used. She, therefore, submitted that the orders passed by the Fora below were perfectly valid and ought to be maintained.

 

9.     Section 13(1) (c) of the Act reads as under:-

“13.   Procedure on admission of complaint – (1) The District Forum shall, on admission of a complaint, if it relates to any goods, –

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(c)    where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.”

[Emphasis supplied]

 

10.    From this, it is clear that reference to an appropriate laboratory (or, expert) for determination of defects in goods is not entirely mandatory. In this case, based on the admitted evidence that the complainant was required to take his newly purchased car to the workshops of the opposite parties repeatedly – practically every month – the District Forum specifically observed-

“… … … Ld. Counsel for the OP submitted that there is no expert opinion that there is manufacturing defect in the vehicle. In our view no expert opinion is required in the circumstances of the case as noted above. The vehicle did not run smoothly even for a month and within two months of the purchase it was taken to the workshop of the OPs with complaints of high consumption oil and in less than four months started emitting excessive smoke. The car had to be taken to the workshop of the OPs almost every month with one problem or the other and one problem, which continued persisting is high consumption of engine oil and emission of smoke impels us to the inference that there is some manufacturing defect which is beyond rectification.”

 

11.    It cannot even be the case of the petitioner that a buyer of a new car would repeatedly go to the workshops of the dealer/manufacturer with flimsy complaints because doing so entails expenditure of considerable effort, time and money to the buyer. Moreover, the fact that the engine assembly had to be changed altogether is a clear admission of the reality in this case, viz., there was some manufacturing defect in the engine assembly leading to excessive consumption of engine oil and emission of smoke. However, as rightly contended by Mr. Narain, the liability of the petitioner under the warranty ended with replacement of the defective engine assembly and, even with the finding that the District Forum arrived at, the direction to replace the car was not warranted in view of the law on the subject as settled by the Apex Court (as in the case already cited above). On the other hand, there is no reason to hold that the complainant/respondent 1 did not suffer physical harassment and mental agony as well as expenditure of time and money in the process of getting the defects in his new car attended to repeatedly. Therefore, in our considered opinion, the complainant/respondent 1 ought to be suitably compensated.

 

12.    In conclusion, we partly allow the revision petition and set aside the impugned order of the State Commission and that of the District Forum. However, in view of the foregoing discussion, we deem it appropriate to direct the petitioner to pay to the complainant/respondent 1 compensation of Rs.40,000/- for the harassment, mental agony and expenditure suffered by him since the purchase of the car till the replacement of the engine assembly and cost of Rs.10,000/-, including these proceedings. This payment may be made within four weeks of the date of this order.

 

Sd/-

…………………………….

(K.S. CHAUDHARI, J.)

 

Sd/

…………………………….

(ANUPAM DASGUPTA)

Mukesh

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