Jeevanti Devi vs Tata Motors Ltd. & Anr

These two revision petitions have been filed by the petitioner Smt. Jeevanti Devi, against the order dated 14.09.2012 of the State Consumer Disputes Redressal Commission, Uttarakhand, (in short 'the State Commission') passed in First Appeal No.43 of 2011 and First Appeal No.44 of 2011.

Brief facts of the case are that on 16.01.2008, the complainant/revisionist purchased a TATA Winger Mini Bus from respondent No.1 for a sum of Rs.6,19,852/- and got it registered in the Office of RTO, Haldwani having registration No.UK 04 PA0020. The said vehicle was purchased with the financial assistance from the Nainital Almora Bank, Branch Haldwani. The revisionist also got issued a permit and intrusted the said vehicle to an expert driver. On 15.07.2008, speedometer of the said vehicle became out of order and thus it was handed over to the respondent No.1 for its repairing. On 26.07.2008, for repairing, the gear-box of the said vehicle was opened, but it was re-fitted correctly and in the meanwhile, the barring of the left axle of the vehicle became defective but the respondent No.1 in place of repairing it correctly, fitted the barring of some old vehicle and thereafter handed over the said vehicle to the revisionist. However, the vehicle did not remain in prompt running condition. On 20.12.2008 to 29.12.2008, the said vehicle again went out of order and was again handed over to the respondent No.1 for its repairing and it remained with it till 29.12.2008. After few days, the vehicle again went out of order and it was again handed over to the respondent No.1 and it remained with it from 09.01.2009 till 03.02.2009.

On 14.02.2009, the vehicle again went out of order and since then it is lying with the respondent No.1. All the aforementioned defects in the vehicle occurred during the period of warranty/guarantee but the same were not properly cured. It was further alleged that the respondent No.1 has sold the said vehicle to the complainant/revisionist which was suffering from mechanical and manufacturing defects, on account of which the complainant/revisionist has suffered great mental torture, besides financial loss. On 28.02.2009, the complainant/revisionist could not run the same and thus failed to pay the instalment of the loan and had to pay taxes of the said vehicle on her own and as such under compulsion surrendered the documents to the RTO, Haldwani. On 19.02.2009, the complainant/revisionist got sent a notice through counsel, which remained un-replied. Thereafter, the complainant filed consumer complaint case No.29 of 2009 before the District Consumer Disputes Redressal Forum, Nainital for refund of the cost of the vehicle with interest or to provide new vehicle in place of it. On 23.06.2009, the respondent No.2 filed written statement stating that as and when the vehicle was brought to the workshop of the respondent No.1, the defects were duly rectified. The respondent No1 also filed written statement stating that the vehicle was checked in the workshop and leakage was found in the oil seal of the gear-box and the lock of the door was found broken. It was further stated that after the receipt of parts, the vehicle was repaired and handed over to the complainant on 26.07.2008 after getting it tested to her full satisfaction. It was further stated that on 20.12.2008, the complainant brought the vehicle with the complaint of noise in gear-box and white smoking. It was further stated that after necessary repairs, the vehicle was handed over to the complainant/revisionist on 29.12.2008 to her full satisfaction.

It was further stated that again on 09.01.2009, the vehicle was brought with the complaint regarding gear box and speedometer of the vehicle and the new gear box was fitted in the vehicle and after trial of the vehicle by the son and the driver of the complainant, the vehicle was handed over. It was further stated that on 14.02.2009, the vehicle was brought to the workshop and on checking, the battery of the vehicle was found defective and by that time the warranty had expired and this fact was duly informed to the complainant. It was further stated that on replacing the battery, the starting of the vehicle was found in order and the complainant has unnecessarily left her vehicle in the workshop. On 22.01.2011, the District Forum after careful consideration of the respective versions of the parties and appreciation of the material available on record, allowed the aforesaid consumer complaint case and awarded a sum of Rs.5,79,085/- after deducting Rs.50,000/- from the actual cost of the vehicle. In the month of February, 2011, aggrieved by the award passed by the District Forum, the respondent Nos.1 & 2 filed two appeals before the State Commission, which were numbered as First Appeal No.43 of 2011 and First Appeal No.44 of 2011. The State Commission allowed both the appeals vide its order dated 14.09.2012 and set aside the order of the District Forum. The consumer complaint of the complainant was also consequently dismissed.

Hence the present revision petition.

These revision petitions were dismissed by this Commission vide its order dated 14.08.2013 on the ground of limitation. Hon'ble Supreme Court vide its order dated 10.11.2014 observed that delay should have been condoned by this Commission and while accepting the Civil Appeal No.10120-10121 of 2014 remanded the matter to this Commission. Accordingly, the delay stands condoned in filing the present revision petitions.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner states that the State Commission has allowed the appeal of respondents/opposite parties on the ground that no expert report has been produced in the matter. It was argued that the report of the Foremen of the Uttarakhand Transport Corporation was specifically asked by the District Forum and accordingly he submitted his report dated 27.09.2010. Thus, it cannot be said that the decision of the District Forum was not based on any expert report. The State Commission has not accepted report of the Foremen only on the ground that Foreman has mentioned in the report that "it is not expected that in future, the said vehicle can be operated properly in the hilly regions with passengers." It has been observed by the State Commission that the Foreman has given this conclusion without any reasoning. The fact of the matter is that the vehicle was tested by the Foreman along with opposite parties on the plain roads without any passengers and the opposite parties refused to test the vehicle on a hilly road. Based on this, the Foreman had reached to the conclusion that the vehicle was not worthy of being plied in hilly regions.

The Foremen in his report has clearly stated that "the vehicle has been sent for repairs times and again for the defects in gear box and defects in speedometer to Commercial Motors, Haldwani and it took one week to one defect. Same defect is coming times and again in the vehicle, it seems that there is no trained mechanic available for TATA Winger Mini Bus in commercial Motors" . Thus, the technical expert has also opined that the same defects are appearing time and again, which are mainly relating to the gear box and speedometer. One can very easily imagine that if the gear box is not functioning, the vehicle cannot run properly. The opposite parties had replaced the gear box once, but the vehicle again did not operate properly and was taken to garage/service station. Since a new vehicle was purchased and it was not running properly, the petitioner has suffered great loss as the vehicle was financed by taking loan. The State Commission has not appreciated these facts and has passed an erroneous order not believing the report of the Foreman.

On the other hand, learned counsel for the respondents stated that the State Commission has given reasons for not accepting the report of the Foreman, rather, the State Commission has further relied on report of the Divisional Manager, (Technical), Uttarakhand Transport Corporation, Kathgodam dated 24.02.2011, wherein no manufacturing defect in the said vehicle has been mentioned. It was further pointed out by the learned counsel for the respondents that the Foreman has not tested the vehicle by driving the same and has only given his observations. As the taxes were not paid, nor there was any fitness certificate, the vehicle could not have been taken on long drive on hilly roads and therefore, opposite parties refused to drive on a hilly road. Based on this refusal, the Foreman has given report that the vehicle cannot be driven in hilly regions in future. Whenever the car was brought to the service station, the same was repaired to the satisfaction of the complainant. Even if the report of Foreman is considered as the expert report, the Foreman has not mentioned even one manufacturing defect in his report.

Even under the warranty the complete gear box was changed by the opposite parties and then after that when the bus was brought again for repair it was seen that only the battery was not functioning properly. However, complainant left the vehicle and never turned up for taking repaired vehicle. In these circumstances, if the vehicle has been left unattended, the opposite parties cannot be held responsible for any wear and tear in the vehicle.

I have given a thoughtful consideration to the arguments advanced by both the parties and have examined the material on record. The District Forum under its power asked for the report of the Foreman of the Uttarakhand Transport Corporation, who submitted his report dated 27.09.2010 through Divisional Manager, Uttarakhand Transport Corporation. The District Forum relying on the report of the Foreman allowed the complaint. However, the State Commission did not accept the report of the Foreman by observing that no cogent reason has been given by the Foreman for reaching to the conclusion that the vehicle was not worthy of plying on a Hilly road in future. Further the State Commission has relied upon the report of Divisional Manager, (Technical) Uttarakhand Transport Corporation, wherein it has been observed that there was no manufacturing defect in the vehicle. The first question is whether the report of the Foreman is to be considered or report of the Divisional Manager, Uttarakhand Transport Corporation should be considered. The District Forum under Section 13 of the Consumer Protection Act, 1986 appointed the Foreman of Uttarakhand Transport Corporation to give his report after examining the vehicle. Thus, the District Forum appointed the Foreman as an expert in the matter. The report of the Divisional Manager, Uttarakhand Transport Corporation, was not asked, if the reports are contradictory, obviously the report of the expert appointed by the District Forum has to be considered.

Foreman in his report has clearly stated that he has examined various job reports taken out from the computer of Commercial Motors and have stated that the vehicle was brought for repairs times and again mainly for defects in gear box and speedometer. I agree with the assertion of the learned counsel for the complainant that if there is a persistent defect in the gear box and the gear box is not working properly, the vehicle cannot run satisfactorily. It is also true that the Foreman has not given any opinion on any manufacturing defect and his opinion in respect of the hilly road worthiness of the vehicle is only supported by the fact that the opposite parties refused to test the vehicle on a hilly road. After testing on the plain road, the Foreman gave clear opinion that after road tests unloaded vehicle was found technically fit. Thus, it was open for the Foreman to test the vehicle on the plain road even after loading the passengers, but the same has not been done. The explanation given by the opposites parties for not testing the vehicle on a hilly road are not justifiable because if there was any requirement of some basic law being observed for testing, the complainant should have been asked to do the needful in the matter. Therefore, the Foreman was not totally unjustified in observing that the vehicle in future was not capable of being driven on a hilly road.

From the above examination, it is brought out that even though the Foreman has not specifically mentioned any manufacturing defect, however, he has clearly given opinion that gear box and speedometer are giving trouble time and again and vehicle has been brought for repairs on these counts many times. Though it has been claimed by the opposite parties after replacement of gear box that when the vehicle was again brought for repair, it was mainly due to defect in the battery and not due to any defect in the gear box or in speedometer. Considering the view of the opposite parties as well as view given by the Foreman in his expert opinion, I partly allow the revision petition and respondents/opposite parties are directed to completely repair the vehicle and make it in a running condition at opposite parties expense and arrange the fitness certificate with hill endorsement from the concerned regional transport officer/authority and then handover the vehicle to the complainant. I am conscious of the fact that the fitness certificate cannot be obtained by the opposite parties and the same will have to be applied by the complainant. The complainant shall complete the formalities for getting the fitness certificate of the vehicle before the concerned authority, once the intimation is given to the complainant that the vehicle has been fully repaired. The fees etc. for getting the fitness certificate shall be paid by the opposite parties. If the fitness certificate is obtained then the complainant shall take delivery of the vehicle from the opposite parties. So far as the question of taxes, permit fees is concerned, the concerned RTO/authorities shall take into consideration the fact that the vehicle remained inoperative in the garage of Commercial Motors from 14.2.2009 till date of submission of vehicle for fitness certificate in compliance of this order. Still if any taxes or fees is required to be paid, it shall be taken care by the complainant.

If the vehicle cannot be repaired or is not repaired or the fitness certificate is not obtained within a period of two months from the date of this order, then the opposite parties shall pay a sum of Rs.3,00,000/- (rupees three lakhs only) and the vehicle shall also be delivered back to the complainant, who may dispose it off as per his convenience. The opposite parties shall pay a compensation of Rs.50,000/- for harassment and mental agony in both the condition i.e. whether fitness certificate is received or not received. RP No.2021-2022 of 2013 stand disposed of accordingly.