NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
(From the
order dated 29.6.2001 in Appeal No.355/94
of the State Commission Orissa)
M/s. Scooters
India Limited & Anr.
Petitioners
Vs.
Madhabananda
Mohanty & Ors.
Respondents
Motor vehicle - defects in a new vehicle - criteria laid for replacement of the vehicle or refund of the price.
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA, MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
HONBLE MR. JUSTICE K.S. GUPTA,
MEMBER
For the
petitioners : Mr.
Prasanta Varma, Advocate
For the respondent : Debashish
Mohanty, Advocate
O R D E R
DATED THE 7th
FEBRUARY, 2003.
JUSTICE D.P. WADHWA, J.(PRESIDENT)
It is the manufacturer who is before us in this petition filed under Section 21(b) of the Consumer Protection Act, 1986. It was the complaint of the complainant respondent No.1 that he had purchased an auto rickshaw from M/s. B.P. Motors Pvt. Ltd., manufacturered by the petitioner. M/s. B.P. Motors was opposite party No.1 and the petitioner was also one of the opposite parties.
Complaint was that auto rickshaw which the complainant had taken on hire purchased from B.P. Motors had manufacturing defect. Complainant sought damages and also refund of various amounts incurred by him on repairs of the vehicle. District Forum after writing a judgment of 11 pages held that since oral evidence was required it will be appropriate if the matter is considered by the civil court. Complaint was accordingly dismissed without prejudice to the right of the complainant to have resort to the civil court. Complainant went in appeal to the State Commission which allowed the appeal and directed manufacturer to pay Rs.10,000/- towards general damages and also Rs.2,000/- as costs of litigation to the complainant. Nothing is, however, said in the order of the State Commission as to what was the result of the other reliefs claimed by the complainant. Aggrieved from this order of the State Commission, it is the manufacturer who is now before us.
An
auto rickshaw manufactured by the
petitioner was purchased on hire purchase
by the complainant. Vehicle was
delivered to the complainant on 5.9.93.
According to the complainant he deposited Rs.5,000/- with B.P. Motors on
9.6.93 for purchase of a new diesel auto rickshaw by the name Bikram. He made further payments of Rs.42,926/- as margin money and also gave 12 post dated cheques of Rs.4647/- before taking delivery of the vehicle. It was registered on 4.9.1993.
Further amounts were also spent by the complainant to make some minor alternations. Right from the day one he found the vehicle was not giving proper service and
there were manufacturing defects resulting in
monetary loss to the complainant.
He had repeatedly to take the
vehicle to the B.P. Motors for repairs to remove the defects. There were defects in the engine, gear box,
teleccrown, body, break systems etc.
Sometimes there were breakdown
on the road itself far away from the
workshop of the B.P. Motors. However,
since the vehicle was having major
defects these could not be repaired. In
utter frustration complainant left the vehicle with the B.P. Motors. Complainant also alleged that it was not a
new auto rickshaw but the load carrier
which was used by the B.P. Motors for
four or five months for demonstration purposes and thereafter
auto rickshaw body was built on
it in the garage and passed on to the
complainant as new auto rickshaw. All
these allegations were, however, denied by the opposite parties who alleged
that it was the misuse of the vehicle
by the complainant. But this could not be denied that the vehicle had
been to the workshop repeatedly. It
was also the defense that warranty was
for three months period or for a run of
7000 Kms. which ever was earlier and during this period complainant had availed of free services and since he defaulted in payment of hire money
, a plea of manufacturing defect was advanced to avoid the hire purchase agreement. The documents which the opposite parties
brought on record showed that there was a break down of the vehicle and
that gear adjustment was done , filter replaced and when there
was a breakdown at a place called
Chandbali servicing was done, front shock absorber was replaced on
3.6.94. From the record it was apparent that
there was a break down at Paradeep as well when a new telecorwn was fitted though it is
claimed by the opposite parties that it
was done free of charge.
State
Commission examined the matter afresh.
Instead of remanding the matter to the
District Forum, State Commission on its own examined the whole aspect of the
matter and in our view rightly so as to
avoid unnecessary expense to the parties. State Commission framed
two questions: (i) whether the case
can be dealt by the State
Commission under the Act? and (ii) whether
the court below was right to order to adjudicate the matter before the
civil court? Holding both these questions in favour of the
complainant, State Commission examined the record of the case. It accepted the version of the complainant. State Commission was of the view that opposite parties have
failed to prove that the defects
pointed out had cropped up during the
normal wear and tear or that these defects occurred because of rough use of the
vehicle on roads by the complainant in
far off places of Balasore or for lack of proper maintenance by the
complainant. State Commission also
found that the differential of the vehicle was overhauled on 9.4.94 and that it was hardly necessary
to overhaul a differential unless there was an inherent defect. State Commission found the complaint to be valid and allowed the complaint by
directing the petitioner-manufacturer to pay Rs.10,000/- as damages and
Rs.2,000/- as litigation expenses.
At
the time of hearing it was submitted
that the amount of Rs.12,000/- has since been paid by the petitioner to the
complainant in execution proceedings filed by the complainant and therefore
the petition has become
infructuous. We do not thin that is
the correct approach. If the amount has
been received by means of execution
that would not mean that parties have settled their dispute.
Any
consumer when he buys a new vehicle he
is under the impression that a new
vehicle is bound to be
mechanically perfect or that a
brand new vehicle would be defect
free. A new vehicle could be deficient
as well. It could be that some errors are insignificant but there may
be many others which substantially impair
use of the vehicle. If the
vehicle is defective a consumer has a
right to seek its replacement or
refund of the price. Though the
burden to prove the defect would be on
the consumer, yet it must be understood
that consumer is not bound to pinpoint
the precise nature of defects or
its cause or source. The warranty which
is given for a vehicle is a warranty for whole of the vehicle and
when it is found that the vehicle does not perform properly the warranty would
be taken to have been breached
even if no individual part could
be identified as defective. It is not always necessary for the
consumer to give expert testimony though if he does so it will add to the weight of the
evidence. However, it must be shown
that the use of the vehicle has been substantially impaired on account of the
defects. If the defects are insignificant that could not be
a case of replacement or refund.
A consumer forum has however, to take into consideration
consumer state of mind as well. After
all he had invested in the new vehicle
to buy peace of mind hoping that the vehicle is dependable and trouble
free. But then coming to a consumer
forum, consumer must first give notice to both to the dealer and
manufacturer and both of them must be
given reasonable opportunity to repair
the defect if it is not inherent
manufacturing defect. It is not
that consumer has to take the vehicle to the workshop time and again for
repairs to be carried out. It will depend upon case to case. It must also be understood that vehicle has to be returned for repair to an authorised dealer and not
to the distant manufacturer itself.
For this purpose manufacturer
must maintain sufficient repair
facilities reasonably close to all
areas where the vehicles are sold. As a
matter of fact accessibility of repair facility is implicit when a new vehicle
is sold.
In
the light of these principles in our
views State Commission has taken correct view of the matter. We do not find any ground to take a
different view. This petition is,
therefore, dismissed which we assess at Rs.2,000/-.
J
(D.P. WADHWA)
PRESIDENT
J
(J.K. MEHRA )
MEMBER
..
(RAJYALAKSHMI
RAO)
MEMBER
J
(K.S. GUPTA )
MEMBER