A.P. Sahi, President

1. The appeal was filed with a 7 days delay and I.A. No. 118/2015 was moved praying for condoning the same. It appears that even though no formal orders were passed for condoning the delay, the appeal was entertained and on 14.07.2016 notices were issued to the respondents, calling upon them to answer the appeal. The appeal was formally admitted on 08.02.2017 and parties were given opportunity to file written arguments. Tata Motors Finance Ltd., the respondent no. 3 filed their written submissions. Thereafter, respondent nos. 1 and 2, the Dealer and the Manufacturer also proceeded to advance their submissions. The matter could not be taken up during the Covid period and came to be adjourned on several occasions. On 31.07.2023, the following order was passed:

Ld. Counsel for the Appellant submits that he has been requested by Mr. Rajiv Duggal, Ld. Counsel for the Respondent No.1 to seek an adjournment today on account of his serious indisposition/heart problem today.

The moot point to be considered is whether or not the Ld. State Commission was justified and dismissing the Complaint, and presuming that there no "Manufacturing Defect" in the vehicle purchased by the was Complainant/Appellant.

It appears that no examination of the concerned vehicle was got done during pendency of the Complaint under Section 13 of the Consumer Protection Act. In this regard, Ld. Counsel for the Appellant submits that the vehicle had remained in custody all along with of the Respondent No.1 since 28.01.2013, when it was delivered to the said Respondent for repair purposes under Job Cart No.6542 of that date, and since then the vehicle has never been returned to the Complainant till date.

If that be so, this Commission would certainly like to hear from the Respondent No.1, the circumstances under which the vehicle has not been returned to the Complainant till date.

Consequently, let the matter come up for consideration in presence of the Ld. Counsel for the Respondent No.1 on 22.09.2023 for final hearing

2. The case was again adjourned and could not be taken up when it was heard on 26.05.2026 by this Bench when the following order was passed:

1. Heard Mr. Nagpal, learned counsel for the appellant, Mr. Duggal for the respondent No.1 and Mr. Khandelwal for the respondent No.2. No one is present for the respondent No.3 today.

2. The appeal has been filed assailing the order of the SCDRC, Rajasthan in CC/25/2013 that has been dismissed on 20.11.2014 holding that the complainant has been unable to demonstrate any material to establish that the vehicle in question, namely, Tata Aria Pride 4 x 4 was suffering from any manufacturing defect. The vehicle was purchased on 23.02.2011. It is urged by Mr. Nagpal that right from the beginning the vehicle kept on shuddering and had various defects of alignment, consumption average failure, hand brakes and vibration etc. and these defects were repeatedly experienced by the complainant but the repairs that were carried out did not improve the situation as the car was suffering from a manufacturing defect. It is urged that in the very third free service when the vehicle had done only 15000 kms., realising the gravity of the defects, the dealer voluntarily changed all the rims and tyres of the vehicle. He urges that the vehicle was in bad shape for which he had pointed to the subsequent running repairs on 9th July, 2011 when two front seats were also changed. Other defects have been alleged including the defect in the steering wheel as well as other defects noted when the vehicle had done only 31000 kms. He has invited the attention of the Bench to the job card dated 15.11.2011.

3. He therefore submits that with all the allegations in the complaint and the evidence on record it was obligatory on the part of the State Commission to have allowed the complaint.

4. Responding to the same, Mr. Duggal, learned counsel for the opposite party No.1 has urged that there was no manufacturing defect at all and all running repairs were carried out during the warranty period. The steering wheel and tyres were changed as a measure of goodwill but there is nothing to demonstrate a manufacturing defect. The opposite party No.1 in its response before the State Commission had categorically requested the State Commission to direct the complainant to lead any expert evidence in order to demonstrate any manufacturing defect by invoking Section 13 of the Consumer Protection Act, 1986 but neither did the complainant move any application or make any request for expert evidence nor did the State Commission found it necessary to do so. It is urged by Mr. Duggal that in fact since there is no such manufacturing defect the complainant may have not opted for it. He however submits that in the absence of any evidence to that effect the allegation of manufacturing defect cannot be presumed to exist merely because some spares were changed during the warranty period.

5. He further submits that the vehicle was fully driven and it appears that it had met with accident twice. The vehicle had come for accidental repairs as is evident from the tax invoices on record and therefore the complainant was attempting to get replacement of his vehicle which had been accidented by him.

6. It is urged that the State Commission rightly came to the conclusion that there was no manufacturing defect and hence the complaint is devoid of merits. It is also urged by Mr. Duggal that the complainant was at liberty to take delivery of his vehicle after making payment of the repairs which was approximately more than Rs.1,00,000/- and is still pending. The complainant himself has therefore abandoned his vehicle since 2013 and consequently no ground is made out for interference in the impugned order under appeal. In response, learned counsel for the Tata Motors has also urged that there is no evidence of any manufacturing defect and consequently the appeal deserves to be dismissed.

7. During the course of arguments, we had enquired from Mr. Nagpal as to the current status of the vehicle as also the status of the clearance of the dues, if any, in respect of the instalments of the vehicle to the respondent No.3. Mr. Nagpal submits that at present he does not have the documents and he prays for time to file the same within a week.

8. Mr. Nagpal may file the said affidavit after providing a copy of the same to the learned counsel for the other side.

9. List on 14.07.2026.

3. With the said order on 02.07.2026 vide Diary No. 15216, an application was moved for placing additional documents on record and information with regard to the status of the vehicle. It has been informed through the said application that the complainant appellant has been renewing the insurance policies of the vehicle. The last renewal valid upto 27.02.2026. It is stated by Mr. Nagpal that since the vehicle was 15 years old, therefore no further insurance cover has been taken, but during this entire period, the vehicle came to be covered under a comprehensive policy, the premium whereof has been continuously paid throughout for all these years in spite of the vehicle lying in the custody of the respondent no. 1.

4. It was also further informed that since the entire dues in relation to the loan taken from the respondent no. 3 has been repaid, the vehicle stands released from hypothecation. The letter dated 01.05.2015 of the respondent no. 3 Tata Motors Finance Ltd. evidencing the same has been brought on record. Apart from this, the Registration Certificate has been produced which refers to the validity of the Registration till 28.02.2026. The vehicle is now presently 15 years and 2 months old as it was registered on 01.03.2011. The taxes have been paid and the vehicle was fit till 28.02.2026. Not only that, as indicated above the Insurance was also available till February, 2026. The status of the vehicle therefore is that the fitness stands expired keeping in view the age of the car which is a Euro IV Diesel vehicle.

5. Thus the status of the vehicle has been disclosed before us as above and therefore we have proceeded to hear the matter finally with the aforesaid facts on record.

6. The State Commission under the impugned order dated 20.11.2014 has recorded findings holding that the vehicle had met with accidents and complaints with regard to the low average and vibration as well as other defects were pointed out with regard to which the vehicle had visited the respondent no. 1 dealer on several occasions, but the defects could not be cured. The State Commission came to the conclusion that since the vehicle had met with accidents thrice, and no description with regard to the defect in the vehicle had been explained much less a manufacturing defect, therefore the complainant was unable to prove deficiency on that count. The defence taken by the respondents had not been rebutted. It was also observed that no evidence of any expert was produced by the complainant to establish a manufacturing defect and in the absence of any such evidence, the complaint was liable to be dismissed.

7. The respondent no. 1 dealer had taken a stand that all running repairs that were reported during the warranty period had been carried out. As a matter of goodwill gesture, the wheels and the tyres had been replaced. The said replacement that was done within the warranty period is no evidence of any manufacturing defect. It is urged that no such presumption can be drawn merely because the dealer had appropriately and promptly attended to the complaints of the owner of the vehicle. The service history of the vehicle was placed on record and written arguments have been filed on behalf of the respondent no. 1 on 01.07.2022 and on behalf of the manufacturer, respondent no. 2 on 31.10.2022. Written arguments on behalf of the appellant have been filed on 27.08.2024 that are on record.

8. Before we proceed to assess the allegations and counter allegations, we may put on record that the vehicle was under a warranty of 1 lakh kms or 3 years whichever is less. With the purchase of the vehicle, the complainant alleged low average of 9 to 10 kms per litre whereas the promise made was 15 kms per litre. Vibrations, alignment issues, engine faults and hand brake failure were other deficiencies that were alleged in the complaint. From the record, we find that the vehicle was purchased on 23.02.2011 and the first free service was carried out on 03.03.2011. The vehicle clocked a mileage of 1468 kms. The first free service was uneventful. Similarly, the second free service of the vehicle was done on 18.04.2011 with a mileage of 5480 kms. The second free service also appears to be uneventful.

9. The third free service was carried out on 25.05.2011 with a mileage of 15021 kms. On this occasion, all the five rims and tyres were changed and the front wheel alignment was checked and adjusted. Thus, the first defect which appears to have been pointed out with regard to wheel alignment etc. came to be corrected for which the tax invoice has been placed on record and is dated 30.05.2011.

10. It appears that the vehicle again went to the garage on 06.06.2011 after having met with an accident resulting in with certain replacements on the rear side of the vehicle including its bumper. Some welding and painting repairs appear to have been carried out. The invoice dated 09.07.2011 is on record. It appears that this repair request was on the accident of the vehicle. Presumably this was the first incident of accident for which repairs were carried out.

11. The vehicle then went for repairs with complaints of defects in the driver's and the co-driver's seat. The said assembly resulted in the replacement of the seat which is evident from the job card dated 24.06.2011, the invoice whereof was issued on 09.07.2011. We find that the mileage recorded at the third free service, and of those on the running repairs invoice seem to be the same and appears to be an error.

12. With the aforesaid repairs, within five months of the purchase of the vehicle it appears that the vehicle again met with an accident in the first week of September and the vehicle was sent to the respondent no. 1 dealer where after noting the request of accident the repairs were carried out and an invoice dated 05.10.2011 was generated for the payment of Rs. 1,09,498/-. The invoice indicates several replacements in the front and the rear area of the vehicle including the assembly of the entire radiator with fan, the rear bumper, condenser, the assembly for the bonnet shell, reflectors, lights and other replacement with the vehicle having clocked a mileage of 27910 kms. The tax invoice therefore reflects the second accident of the vehicle.

13. On 21.10.2011, the vehicle went for its fourth free service and it appears that the brake pads were replaced. The vehicle had done 30155 kms.

14. It is therefore evident that within a period of 8 months, the vehicle had run about 30000 kms which roughly comes to about 4000 kms a month and not less than 100 kms per day. We are mentioning this fact in order to indicate the running of the vehicle and its usage.

15. The vehicle once again went for repairs after a run of 31115 kms on 15.11.2011. The invoice indicates reference to the rack and pinion of the steering wheel under repairs that was replaced being under warranty. The complainant has alleged that these sort of repairs had got nothing to do with the accident and as a matter of fact, these defects were in the vehicle right from the beginning connected with the wheel alignment problem resulting in the change of all the rims and the tyres. The defects therefore continued.

16. It appears that the vehicle met with yet another accident even though it appears to be a minor one for which repairs were undertaken as indicated in the job card dated 16.02.2012. The invoice is dated 28.02.2012. The vehicle by this time had clocked 33000 kms.

17. Once again after having run 35715 kms, the vehicle went for running repairs on 20.02.2012 where the wipers were replaced under warranty, but the rear brake pad assemblies were replaced on payment. The invoice dated 20.02.2012 has been filed.

18. The vehicle went for running repairs on 18.04.2012 when the shock absorbers, head lamp assembly and its installation was carried out free of cost as the warranty period was still available. It is urged on behalf of the complainant that apart from the wheel alignment, replacement of rims and wheels, the replacement of front seats, the rack and pinion replacement was followed by the shock absorber replacement when the vehicle had only run 37624 kms. The invoice dated 20.04.2012 is on record.

19. On 04.04.2012, the vehicle again entered the workshop with 14 complaints enlisted in the job card including alignment problem, brake pads, clutch, handbrakes, bubbling and other leakages.

20. The low average, black smoke emission, the bubbling and shuddering in the vehicle and the tyre wear problems were once again reported on 28.01.2013. The job card is on record. It appears that with the aforesaid status of repairs and the complaints, the complainant sent a legal notice on 06.06.2012. The complainant has also brought on record several mails of the year 2012 right from 23.03.2012 onwards to indicate that the customer care of M/s. Tata Motors had been continuously informed and according to the complainant all the problems were enlisted including assignment, wobbling and brake, fuel average and other small items. Mr. Nagpal has invited the attention of the Bench to all the mails to contend that the continuous use of the vehicle and the problems being intimated to the respondent no. 2 M/s. Tata Motors was ultimately followed by the legal notice dated 06.06.2012.

21. The respondent no. 1 seems to have replied on 05.03.2014 stating that the complainant has left behind his vehicle namely Tata Aria Pride 4x4, Registration No. RJ14 UC 5333 on 28.01.2013 that was lying with the respondent no. 1 service centre. In spite of the repairs having been carried out, it was alleged in the said letter that the complainant has failed to take delivery of the vehicle even though the vehicle had been completed in all respects. Earlier a notice had been sent to the complainant for taking the delivery of the vehicle after making payments which he did not do. According to the respondent no. 1 as on the date of the said reply dated 05.03.2014, there were dues of Rs. 1,67,579.94p which the complainant had failed to pay and take delivery of the vehicle.

22. The said letter also indicated that in the event the said payments are not made, then the vehicle shall be sold and the amount received from the sale shall be accordingly adjusted and the balance, if any shall be refunded to the complainant. According to the learned counsel, no response was shown by the complainant and instead CC No. 25/2013 was instituted before the State Commission alleging deficiency in service.

23. The complaint thereafter proceeded and the responses / reply filed by the respondent no. 1 before the State Commission and in paragraph 2 of the written statement of the respondent no. 1, it was categorically stated that even though an allegation of manufacturing defect has been made, but no request for carrying out any expert examination has been made, keeping in view the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986. It was also alleged that the vehicle when it was sent on 28.01.2013 had already clocked 46013 kms and therefore there was no presumption to treat that there was any manufacturing defect in the vehicle or else it would not have covered such a mileage within 1 ½ years. It was also alleged that the usage of the vehicle and the accidents that it had suffered indicated mishandling and consequently the allegation of any manufacturing defect was just made without any basis. It has also been alleged that the vehicle had been probably used for commercial purpose and was running like a taxi which is evident from the usage pattern where the vehicle had run more than 46000 kms with a history of three accidents.

24. Learned counsel for the respondent no. 2 M/s. Tata Motors has urged that he adopts all the arguments advanced by Mr. Duggal, learned counsel on behalf of the respondent no. 1 as well as the argument that in the background of the accidents, the warranty stood foreclosed. Even otherwise he has adopted the argument that there was no expert evidence and since the complainant has failed to prove the same by any cogent or credible evidence, the question of seeking any remedy against the manufacturer does not arise. Judgments in the cases of Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644; Mahindra & Mahindra vs. B.G. Thakur Desai, (1993) 1 CPJ 72 (NC); Sushila Automobiles Pvt. Ltd. vs. Dr. Virendra Narayan Prasad, (2010) 3 CPJ 130 (NC) and Bharathi Knitting Co. vs. DHL Worldwide Express Courier, (1996) 4 SCC 704 have been cited in support of the submissions.

25. Mr. Nagpal, learned counsel for the appellant has responded in rejoinder contending that with the defects that were persistent and continuous, the deficiencies are established and in such circumstances, the failure of the respondent no. 1 to cure the same and the failure of the respondent no. 2 to attend to the same confirms that the deficiencies continued and remained unrectified. He therefore prays that the appeal be allowed and the impugned order of the State Commission which does not refer to any of this evidence as narrated above, the same cannot be sustained. The order of the State Commission is therefore bereft of any analysis and consequently the impugned order be set aside.

26. We have considered the submissions raised and we find that the State Commission has been influenced by the fact of the accidents and non- impleadment of one of the garages. The State Commission has been further influenced by the fact that the complainant must have received insurance money for the three accidents and yet was claiming money from the dealer.

The conclusion has been also drawn from the fact that the respondent has not charged any money during the period of insurance. This does not appear to be correct keeping in view the charges which have been realised by the dealer in respect of certain running repairs which were not covered by the warranty. We also do not agree with the conclusion of the State Commission that the complainant must have received some insurance money, inasmuch as there is no evidence led by the dealer to that effect.

27. The contention of manufacturing defect having not been proved, the complaint was dismissed.

28. From the facts on record, we find that no attempt was made for getting an expert opinion on the allegation of any fundamental manufacturing defect. The vibration and shuddering of the vehicle and the alignment problem was attended to by the dealer. No other material was placed to indicate that any further defects were on account of any manufacturing deficiency. This definitely required an expert opinion which the complainant appellant has failed to adduce. We are therefore in agreement with the argument raised on behalf of the learned counsel for the respondents no. 1 and 2 that the complainant has not been able to establish a case of manufacturing defect.

29. Contentions have been raised on behalf of the respondents regarding mishandling of the vehicle or rough driving and the mileage of 46031 kms having been recorded in the last job card dated 28.01.2013 to urge that the vehicle was purchased on 23.02.2011 and within a period, little short of two years, it had done 46000 kms which indicates that the vehicle was overrun as against its normal usage as a private car. We do not find any evidence having been led to that effect to construe the overrunning of the vehicle, but the fact of three accidental repairs may possibly give an impression of rough driving or mishandling.

30. However, the defects that have been narrated indicate replacement of all five rims and tyres within a very short span of time of the purchase of the vehicle. The replacement of the rack and pinion of the steering wheel is also an evidence to that effect. This was followed by the replacement of the two frontal seats. All these replacements bereft of the stated accidents do indicate that the vehicle had been suffering from some defects that were rectified under the warranty period itself.

31. It appears that when the vehicle went for repairs on 28.01.2013 and the complainant was called upon to pay the bill by the respondent no. 1, he refused to do the same and asked for replacement. The complaint was immediately filed in 2013 itself and no interim arrangement was made by the State Commission throughout the pendency of the complaint which came to be dismissed on 20.11.2014. This appeal was filed in the year 2015 and unfortunately, no interim arrangement about the case was made throughout this period of the pendency of the appeal as a result whereof the vehicle admittedly continued to be in the possession of the respondent no. 1 dealer. The respondent no. 1 dealer has raised a demand, but we find that when reply had been tendered by the dealer to the legal notice in the year 2014, it had indicated that in case the complainant fails to respond, the vehicle shall be sold and the proceeds thereof shall be adjusted and the balance refunded. The respondent no. 1 did not take any steps in furtherance of such a reply nor any interim arrangements were made either by the State Commission or this Commission as a result whereof the vehicle remained parked with the respondent no. 1 for the 13 years. The letter of the dealer, the respondent no. 1 herein dated 05.03.2014 which is a reply to the legal notice of the complainant in the penultimate paragraph states that in the event the complainant fails to pay the dues and lift the vehicle, the vehicle shall be sold. We find this to be confirmed as the vehicle is still lying with the respondent no. 1 who does not appear to have taken any steps for the disposal of the vehicle, may be on account of the pendency of the litigation.

32. With this passage of time, the life of the vehicle also stands discharged and the consequence thereof is that there is no registration of the vehicle as on date as more than 15 years have passed by. The vehicle cannot be put to any further use.

33. What is also evident that the complainant kept on paying the insurance premiums for all these 15 years. We find ourselves in a legal quagmire on this factual foundation to find a way-out for this unproductive litigation where the complainant has not been able to use the vehicle, nor the vehicle came to be sold so as to be of any value worth the name. In such circumstances, we are handicapped in proceeding to even consider any submissions, much less awarding any compensation to the complainant in the background that the complainant has failed to establish a manufacturing defect against the manufacturer, respondent no. 2 herein.

34. We therefore dismiss the appeal as against the respondent no. 2. The respondent no. 3 is the Finance Company who has already certified the clearance of loan dues and therefore neither any relief is claimed against the said respondent nor is the respondent a surviving contestant in the matter.

35. The only contest therefore remains between the allegations and counter allegations regarding the alleged defect and the response of the respondent no. 1 on the basis of material on record. As noted above, there were certain defects during the warranty period that were removed as enumerated and discussed by us. However, the complainant failed to take delivery of the vehicle which he could have done by making a deposit under protest, subject to the outcome of the litigation. The complainant however did not choose this path and instead entered into litigation which remained held up till date. The complainant therefore could not even enjoy the fruits of the services of the vehicle even though he did utilize it for 46000 kms. Thus to a great extent, for a period of 1 ½ years, the vehicle was used by the complainant. This factor therefore proportionately reduces the value of the vehicle at least in the year 2013 itself. We are therefore taking this pragmatic view to now proceed to close these proceedings as having considered all the evidence, it is no use remanding the matter for an assessment afresh. The vehicle cannot be used any further and therefore is as good as scrap.

36. In order to draw the curtains on this litigation, we have already found that the complainant has not been able to establish the allegations of manufacturing defect. Nonetheless, the complainant has not been able to use his vehicle, may be because of this long drawn litigation, which is on account of the delay in the system and also because the complainant appellant and the respondent no. 1 dealer failed to take appropriate steps seeking any interim arrangements for the custody or disposal of the vehicle.

37. We therefore dispose off this appeal with a direction that the vehicle in whatever condition it is as on date, shall be delivered and handed over by the respondent no. 1 to the complainant, and in the background that the vehicle may now be of scrap value, we direct that the respondent no. 1 dealer shall release the vehicle to the complainant without any charges or compelling the complainant to pay any parking charges. The vehicle shall be released to the appellant within 15 days. The vehicle shall be either driven or towed away by the complainant at his own cost within the said period.

38. The appeal stands disposed off with a modification of the impugned order to the aforesaid extent only.