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
Madhabananda Mohanty & Ors. Respondents
Motor vehicle - defects in a new vehicle - criteria laid for replacement of the vehicle or refund of the price.
HONBLE MR. JUSTICE D.P. WADHWA,
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.K. MEHRA )
(K.S. GUPTA )