Toyata Kirloskar Motor Ltd vs Jayesh T. Tanna

PETITIONERS /Opposite Parties No.1 and 2 being aggrieved by order dated 21.12.2012, passed by Tamilnadu State Consumer Disputes Redressal Commission, Chennai (for short, ''State Commission '') have filed the present revision petition.

BRIEF facts are that respondent no.1/complainant filed a consumer complaint before District Consumer Disputes Redressal Forum, Chennai (North) (for short, ''District Forum '') on the allegations that he purchased a Toyota Corolla from the petitioner no.2 on 21 -8 -2003 and within a week while driving the car, he found the yellow light indicating malfunction of some parameter. Though, the vehicle was sent to petitioner no.2 ''s service centre, but the defect was not rectified. On the assurance given by petitioner no.2 that defects of MIL glow have been rectified, respondent no.1 took delivery of the vehicle. Later on when respondent no.1 travelled from Ooty to Madras, he again noticed the glow of the MIL and immediately stopped the vehicle and petitioner no.2 was contacted. Thereafter, the car was towed to the service station of petitioner no.2, who wrote letter dated 21.6.2005 that continuous driving has resulted in high engine heat and seizure of the engine and gave an estimate of Rs.1,39,292/ - and a sum of Rs.8,000/ - towards repair charges for engine overheat. Thus, it is clear that the inherent manufacturing defect existed from the first day. The MIL glow had been informed to petitioner no.2 occurring from January, 2005 to March, 2005 and the car was well within the period of warranty. Hence, respondent no.1 filed a complaint praying that petitioners be directed to replace the defective car by providing a new one and to pay a sum of Rs.2 Lac for mental agony, inconvenience, hardship and physical strain suffered by him and a sum of Rs.10,000/ - per month towards travel expenses from 6 -6 -2005 till the date of disposal of the complaint and to pay costs of Rs.10,000/ -. As per version of the petitioners, after inspection on 06.06.2005 the engine was suspected for seizure and therefore the petitioner no.2 has contacted the respondent no.1 and sought for his approval to dismantle the engine to conduct detailed examination. It is further stated that complainant gave the approval for dismantling on 11.06.2005 and accordingly the engine was dismantled on 13.06.2005. After dismantling the engine they found warpages (deformation, in general) on cylinder head and block. Petitioner no.2 thereafter contacted the respondent no.1 and explained about the seizure of the engine and further informed that the same can be rectified on chargeable basis. Further, only on persistent demand from the respondent no.1 to give in writing the cause of the damage suffered by his vehicle ''s engine, petitioner no.2 indicated in their letter dated 21st June, 2005 that there is a possibility of engine over heating, which was only their preliminary opinion, pending detailed investigation by them in association with technicians of petitioner no.1.

IT is further stated that the engine of the vehicle suffered damage only due to the negligent handling of the car by respondent no.1 and not due to any inherent manufacturing defect as alleged. Respondent no.1 has not properly maintained the vehicle and he filled one litre non -genuine coolant and half litre of distilled water into the coolant reservoir when the engine was hot and the engine was switched off which resulted in unequal thermal expansion of the Head Assembly of the Engine leading to warping of Engine Head; as a result of which the coolant and the engine oil got mixed and entered the combustion chamber and damage suffered by the engine is due to mishandling of the vehicle by respondent no.1. So the vehicle cannot be repaired under the warranty. Therefore, there is no manufacturing defect in the vehicle and further there is no deficiency in service on the part of the opposite parties.

DISTRICT Forum, vide order dated 29.10.2008 after considering the rival contentions of the parties, passed the following directions; "O.P. No.1 and 2 individually or jointly directed to pay the restricted amount of Rs.2,20,000/ -. The award shall be paid within six weeks. Failure compliance entails penalties under section 27 of Consumer Protection Act. "

Being aggrieved, petitioners filed appeal before the State Commission which dismissed the same, vide impugned order.

HENCE , this revision.

WE have heard learned counsel for the petitioners and gone through the record. It has been contended by learned counsel for the petitioners that engine and gear box were dismantled in order to identify the problem in the vehicle so as to give estimate of expenses involved in the repairs thereof. This act of dismantling has been done only with the approval and knowledge of respondent no.1/complainant, as revealed by the correspondence that is, Letter dated 22.7.2005 sent by petitioners in reply to Respondent no.1 ''s Lawyer ''s notice. The necessary repairs could not be carried out since respondent no.1 failed to give approval for the same. The State Commission failed to consider the correspondence exchanged between the parties which had been duly placed on record. Further, respondent no.1 did not object to dismantling anywhere in the complaint and has been silent about the same in his pleadings.

DISTRICT Forum, while allowing the complaint held; "The complainant has purchased a vehicle from, the O.P.2 on 21.03.2003 manufactured by O.P.1 within a week from purchase while driving the yellow malfunctioning of some parameter. In the month of May complainant going the vehicle from Ooty to Chennai new Villupuram MIL flashed and vehicle stopped immediately complainant informed the O.P.2 and the car could not proceed further O.P. was informed about it and towed the vehicle to the service station of O.P.2. The O.P. in his letter dated 21.06.2005 stated seizure of vehicle due to over heat of engine had occurred due to severe operating conditions and continuous driving with over heat engine has resulted in seizure of the engine and gave an estimate amount 1,39,292/ -for getting the vehicle repaired. The advocate commissioner was appointed who visited the service station of the O.P.2 on 28.10.2004 4 P.M. (Ex C1) where the said vehicle was lying the 2nd O.P. with a malafide intention dismantling the engine and gear box from the vehicle there by indirectly prevented the advocate commissioner and automobile engineer from inspecting the vehicle as to the cause of seizure of engine. The complainant never asked the O.P. to dismantle the vehicle. O.P. in the fear of being exposed prevented the inspection. We can draw an adverse inference in favour of the complainant. The another defence taken by the O.P. alleging that the coolant reservoir was filled with non genuine coolant and that was the cause for the seizure of engine may not be agreeable defence by the O.P. O.P. has taken inconsistence stands regarding the engine life going while training. O.P. 1 has admitted in his reply notice 22.07.2005 Ex.A.14 that the engine life blowing there in the month of January and it was due to the disconnection of oxygen sensor. Where it was bitten by a rat. It is the same O.P. has stated bitten by a rat. It is the same O.P. has stated bitten by a rat is suspected. Though O.P. relying on the technical report of the technocrafts that to opined due to the blowing of coolant and water when the engine was hot in the switched off condition and resulted in unequal thermal expansion of as a result of it coolant and engine oil got next entered the combustion chamber and the complainant had driven the car for about 5 to 6 Km. thereafter which resulted in the engine getting stalled left uncorroborated. Though the company said to be of international repute mere pouring the coolant in switched off condition and the resultant seizure of the vehicle would show that the engine cannot with stand such treatment would show the engine is not up to the standard as promised by the O.P. Though the vehicle stationed in O.P. 2 station more than 6 months, it is clear that the O.P. was willing to carry out the requests demanding the payment towards repair and labour charges and aggrieved over it the complaint has been filed. Another stand taken by the O.P. the warranty provide by the manufacturer to subject to proper maintenance after vehicle but the complainant has not followed it guidelines and is not entitled to the benefits envisaged may not merit acceptance. Since inconsistence stand taken by the O.P. quoting that warranty period has lapsed on other hand. It is stand to inform that warranty period of apse on account of irregular maintenance of course O.P.2 is was only maintaining the vehicle by their service. Now we can come to the conclusion the repairs or damages to the engine fall within the warranty period and defect noticed in the month of January, 2000 question of dismantling the vehicle show as to result seizure of engine rendering the warranty to void. This misleading the O.P.s contention based on the technocraft opinion pouring of cold coolant and water from the engine when it was not resulted and coolant the engine oil mixed and entered the combustion chamber is a farfetoued one. The above such circumstances the complainant made out the case of deficiency of service on the part of O.P.1 and 2. "

THE State Commission while dismissing the appeal in impugned order observed; "7. On consideration of the entire evidence, we find that the allegation of inherent manufacturing defect in the vehicle is not established by the complainant/respondent and there is no cogent evidence on record to substantiate that there was inherent manufacturing defect in the vehicle. 8. All the same, there is force in the contentions of the complainant that the engine and the gear box of the car were dismantled and the vehicle was kept in the open ground under the hot Sun without the complainant ''s knowledge and consent and also that the Advocate -Commissioner appointed by the Forum was not able to carry out his duty because of the non -cooperation of the 2nd opposite party. 9. It is admitted by the 2nd opposite party that the engine and the gear box were dismantled, but there is nothing on record to show that the consent of the complainant was obtained before doing so. 10. According to the complainant, the engine and the gear box of the vehicle were dismantled without his knowledge and consent. Therefore, the contention of the complainant that the engine and the gear box were wantonly dismantled, is tenable and has to be accepted in the absence of evidence to show that the complainant ''s consent was obtained prior to dismantling. Further allegation of the complainant is that the engine and the gear box were dismantled deliberately without their consent in order to thwart the inspection by the Advocate -Commissioner along with the Automobile Engineer who accompanied the Advocate -Commissioner. 11. The opposite parties have simply found fault with the Advocate -Commissioner stating that the opposite party did not know whether the Automobile Engineer had the requisite qualification and competency to do the work, and that the Automobile Engineer and the Advocate Commissioner could have checked the engine and the gear box in their office where they are kept and nothing prevented them from inspecting the vehicle and its parts. The contention of the opposite parties / appellants in this regard is untenable and cannot be accepted. For the aforesaid reasons, we hold that there is no inherent manufacturing defect in the vehicle, and we further hold that dismantling of the vehicle without the knowledge and consent of the complainant, as a result of which the Advocate Commissioner and the Automobile Engineer could not inspect the vehicle amounts to deficiency in service on the part of the opposite parties 1&2. Therefore we hold that there is deficiency in service on the part of the opposite parties 1&2 in dismantling the engine and the gear box without the complainant ''s consent and not rectifying the defects in the vehicle and keeping the vehicle in the open place for months together without making efforts to repair and rectify the defects and to return the vehicle to the complainant.

THE District Forum held that there is deficiency in service on the part of the opposite parties 1&2 and passed an order directing the opposite parties 1&2 jointly and severally to pay a sum of Rs.2,20,000/ - in total for the deficiency in service on the part of the opposite parties and directing the opposite parties to return the car in road -worthy condition without demanding any money from the complainant. We agree with the order of the District Forum.

IN the result, the appeal is dismissed confirming the order of the District Forum. No order as to costs in the appeal. " 12. It is not in dispute that during the warranty period certain defects have occurredin the car of respondent no.1 It is also an admitted fact that there has been over heating of the engine due to which the engine got seized. The question thus arise for consideration is to what is the cause of seizure of engine and if so, whether petitioners can be held liable for deficiency of service or not. 13. As per defence of the petitioners, over heating of engine has occurred due to severe operating conditions.However, petitioners have nowhere stated at all as to what are the severe operating conditions. 14. Be that as it may, admittedly petitioners have dismantled the engine to conduct detailed examination. This itself goes on to show that there was serious problem with the running of the car, otherwise there could have been no occasion to dismantle the engine. Further, as per petitioners '' case the dismantling of the engine was done with the consent of respondent no.1, which fact has been denied by respondent no.1 In this regard, letter dated 21st June, 2005 of petitioners addressed to respondent no.1 is reproduced as under; "We had a thorough examination of your vehicle bearing Regn. No.TN09AC8452 that had reported to us for engine failure. We had observed that over heating of engine has occurred due to severe operating conditions. Further continued driving with over heating engine had consequentially resulted seizure of engine. We had examined all the affected parts that needs to be replaced. Please find attached our estimate. Please let us have your approval for carrying out necessary repairs. We request you to send your formal approval to enable us to start the work and deliver the vehicle to you at the earliest. "

The above letter has nowhere sought the approval of respondent no.1 "for dismantling of the engine ". Moreover, there is no evidence at all to show that respondent no.1 ever gave any approval for the same. Even in legal notice dated 2.7.2005 sent on behalf of respondent no.1, that is, after letter dated 21st June, 2005 of the petitioners, respondent no.1 nowhere gave his approval for dismantling of the engine. Secondly, as per petitioners '' letter dated 21st June, 2005, certain affected parts needed to be replaced and estimate of the same was attached with the letter. However, petitioners for reason best known to them have neither placed before this Commission any detail of the affected parts that were to be replaced nor estimates thereof, which could have thrown light about the nature of the repair the car in question required. Thus, inference has to be drawn against the petitioners for withholding the relevant and best evidence. Hence, we are in complete agreement with the finding of the State Commission that before dismantling the engine and gear box, no consent of respondent no.1 was taken. Further, there is nothing on record to show that after dismantling the engine, petitioners have removed the cause of over heating of the engine.

PETITIONER no.1 who claims itself to be internationally renowned and famous for the hi -tech efficient/automobiles manufactured and sold by it all over the world, has indulged in unfair trade practices in the present case, firstly it could not give any cogent reason for "over heating of the engine " of the car in question. Secondly, it dismantled the engine and gear box of the car without consent of the consumer and lastly, it did not remove the defects in the car to the satisfaction of the consumer. Thus, deficiency of service on the part of the petitioners is writ large in this case.

IT is well settled that under section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act ''), this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Hon''ble Supreme Court in Mrs. Rubi(Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora. "

IN view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21(b) of the Act.

HENCE , the present revision petition stands dismissed with cost of Rs.10,000/ - (Rupees Ten Thousand only) for causing undue harassment and mental agony to respondent no.1. Cost be deposited by way of demand draft in the name of respondent no.1 within four weeks with this Commission, failing which petitioners shall be liable to pay interest @ 9% p.a. till realization. However, the cost deposited by the petitioners shall be paid to respondent no.1 only after expiry of period of appeal or revision, preferred if any. List on 20.12.2013 for compliance.