ABHAY KUMAR PANDA vs Bajaj Auto Ltd.

PURCHASE of a Bajaj Auto Trailer which was found to be defective is grievance of the purchaser in this complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'').

COMPLAINANT is an unemployed young man who possessed a driving licence. He purchased the vehicle for self-employment to earn livelihood taking loan of Rs. 34,000.00 from United Commercial Bank, Nuapada, Cuttack. Balance Rs. 6,566.95 paise towards the total price of the vehicle at Rs. 40,566.95 Paige was paid by him. Added to it, complainant paid annual insurance fees, registration charges and tax. This vehicle was registered as OIU 2295 after getting delivery on 27.12.1988. Since 4/1/1989 complainant was carrying goods for delivery at different places. From the date vehicle was taken delivery, some defects were found which were attended to by the supplier (Opp. Party No. 2). During operation, complainant found defects like low pick up, trouble in gears, breaks, chains, engines, clutch, shock absorber and engine eye nuts were also broken. While moving, there was unnatural thrilling of the vehicle on account of defective welding and thin plates being used m the body. This vehicle was taken to the supplier very often for repairs but the defects could not be rectified. For this complainant had also to purchase spare parts when required by the supplier. On many occasions, vehicle was stranded on the way also. On 15/2/1989, the vehicle met with an accident which was repaired by the supplier for which insurer settled the claim as per terms of the policy. While repair was undertaken, supplier (O.P. No. 2) found on 10/3/1989 that cause of trouble was defective chasis. After obtaining the chasis from the manufacturer, supplier changed it and on 20/6/1989, it informed complainant to take delivery of the same. COMPLAINANT took delivery of the vehicle on 18/7/1989 but found the defects continuing. Vehicle remained idle, with opposite party No. 2 from middle of February till middle of July, 1989. Disheartened, complainant had issued a lawyer''s notice on 12/6/1989 claiming damages to the tune of Rs. 78,181.60 paise. On the aforesaid undisputed premises, complainant alleged that the vehicle has manufacturing defects; from the beginning and defects were not properly attended to. There was delay on account of insincerity of the supplier to get the vehicle on road. Assurance of supplier that the defects if any found on the vehicle being put to operation shall be removed as and when detected was not complied with. Complainant had discussion with Mr. Roul Gupta, Assistant Zonal Manager of opposite party No. 1 at the workshop of opposite party No. 2. Although Sri Gupta was satisfied about defects in the vehicle, losses and damages caused to the complainant, he did not agree to indemnify since he had no financial power. Thereafter, lawyer''s notice was issued on 28/9/1989 to replace the vehicle with a new one and indemnify the losses and damages. Complainant asserted that he got offers for the vehicle being used by intending parties on monthly payment of about Rs. 3,500.00 or near about in the month of January itself but the same could not be accepted by the complainant on account of defects being found perpetually. Since opposite party No. 1 did not honour the claim stating that complainant had contravened the instructions, this complaint has been filed making a claim of Rs. 1,06,244.25 paise with pendente lite and future interest at 12.5% per annum along with future loss of income of Rs. 3,500.00 per month and grate rent at Rs. 250/- per month till realization of the claim dues and prayed for a direction to take back the Bajaj Auto Trailer OIU 2295 from the complainant.

Case stated by opposite party Nos. 1 and 2 in two separate statements is almost the same. Case of opposite party No. 1 is that it is a renowned manufacturer of motorized twowheelers and three-wheelers and is carrying on the manufacturing business for a quarter of a century at least. Auto Trailer is one variety of three-wheeler vehicles manufactured by opposite party No. I, specially designed to carry goods subject to stipulated payload restriction which is set out in the owners'' manual which is given to every customer along with the delivery of the vehicle. Opposite party No. 2 is an authorized dealer of opposite party No. 1, and this dealership being principal to principal basis sale by opposite party No. 2 to a customer is exclusively a matter of connect between opposite party No. 2 and such customer. However, opposite party No. 1 extends a limited warranty in respect of manufacturing defect noticed in a vehicle manufactured by it in accordance with the terms and conditions of the warranty which are set out in the owners, Manual. It was asserted that complainant is not a consumer and complaint is not maintainable since the purchase of the Auto Trailer was for commercial purpose. Besides, being satisfied with the service already rendered by opposite party No. 2 and having taken delivery of the vehicle being fully satisfied in a perfectly running condition complainant can make no grievance. Warranty benefits being denied on a vehicle which has met with an accident which is suppressed by the complainant, he is not entitled to any relief. It was asserted that no assurance was given by any officer of opposite party No. 1 at any stage and the defects as and when found out were removed. After the chasis was replaced, complainant took delivery of the vehicle on 18.7.1989 after being satisfied that the vehicle is giving good performance. In the certificate given by him it was stated that in case no report of any defect is made within a week, it would be assumed that there is no more defect and no complaint was made thereafter, of any defect.

OPPOSITE party No. 2 in his statement of the case asserted that all the defects in the vehicle had been removed and complainant had received it to his full satisfaction. He has not used the vehicle properly for which he is not entitled to any relief. The facts as asserted by opposite party No. 1 were substantially reiterated. Complainant filed rejoinder to the cases stated by opposite parties separately. Several documents were filed by both the parties in support of their cases.

ON the assertions and counter assertions, it is to be examined : (i) whether complainant is a consumer; (ii) whether the vehicle had defect; (iii) whether defects were removed to the satisfaction of complainant; (iv) what is loss of complainant; and (v) what relief can be given to complainant?

There is no dispute that a consumer can file a complaint for defect in goods purchased and deficiency in service hired. In respect of purchaser of goods, a person who purchases goods for resale or for any commercial purpose is excluded from the meaning of consumer as defined in Section 2(d) of the Act. There is no dispute that the vehicle purchased in goods. It is not case of either party that the vehicle was purchased by complainant for resale. It is therefore, to be examined whether complainant purchased the vehicle for any commercial purpose.

COMMERCIAL purpose has not been defined under the Act. Therefore, meaning of such term is to be first found out. A meaning is to be given to a term keeping the object of the statute where it is used. Legislature intended to protect the consumers where there is dispute relating to defect in goods or deficiency in service. It is thus, a benevolent piece of legislation. Terms used in a benevolent statute are to be interpreted in such manner that large number of persons coming within the scope of the legislation get the benefit. Where exception is made or exclusion is provided, a strict interpretation is to be given so that where two views are possible reasonably, the view in favour of the person who is intended to be given benefit under the statute is to be accepted.

IN case, term for excluding persons who purchase for any commercial purpose would not have been there, I would not have no difficulty to come to conclusion that complainant having purchased the vehicle is a consumer and can file the complaint. It is to be examined whether the vehicle purchased for self-employment to earn livelihood is commercial purpose. The word ''commerce'' is always connected with trade or business. Since the word ''resale'' is used, commercial purpose is something other than resale. Any trade or business has the intention to profit. Where primary object is not to earn profit but to earn livelihood by hard toil and giving sweat and blood, it cannot be said to be commerce or commercial purpose. To clarify, a few examples may be taken into consideration. A handicapped person who has learnt to repair radio, purchases implements for repairing radio to earn his livelihood. Can it be said that he had purchased the implements for commercial purpose? A person who engages technical persons to repair radio and collects repairing charges for repairing the same through the technical persons for which he purchases implements. Such purchases of implements can be said to be for commercial purpose. A wood cutter who earns his livelihood by cutting and selling woods. Axe he purchases cannot be said to be commercial purpose. A forest contractor who engages labourers for cutting wood and for that purpose purchases axes, can be said to be purchasing axes for commercial purpose. Similarly, a person who purchases a vehicle for engaging him and earning livelihood cannot be said to be purchasing the same for commercial purpose. Where as a person who purchases a vehicle for carrying on business of transport and engages driver to drive the vehicle can be said to have purchased the vehicle for commercial purpose. Where management is the main work for which person gets return it is commercial. Where although there is some management but main intention is to engage oneself honorably to earn livelihood, purchases of goods for that purpose, it cannot be said to be commercial purpose. Mr. S.C. Lal, learned Counsel for opposite party Nos. 1 and 2 has brought to my notice two orders one of National Commission and the other of State Commission of Rajasthan State. Both of them have been printed in a journal named Consumer Protection Journal. In Western Indian State Motors v. Sobhagmal Muna and others, I (1991) CPJ 44 (NC). National Commission was considering an appeal from order of State Commission of Rajasthan State. In the said case, complainant was running a taxi service for which he purchased a car. It was held that such purchase is for commercial purpose. There is no finding in the said case that complainant had purchased the car to drive it himself for earning his livelihood. In Jaheed Hussain v. M/s Shah and Lohia Auto Pvt. Ltd. and others, I (1991) CPJ 56 Rajasthan State Commission was considering a complaint where the purchasers for effective working out the mining lease granted to him had purchased a truck. It was rightly found that it is for commercial purpose. In this case, however, intention was different. As stated earlier, purchase of the three-wheeler was for self-employment to earn livelihood. Accordingly, I am inclined to find that purchase not being for commercial purpose, complainant is a consumer and complaint is maintainable.

Next question for consideration is whether the vehicle purchased is defective. It is true that vehicle met with an accident hardly two months after purchase. But it is not the case of opposite parties that the defects complained of are on account of accident. Rather, at the time of repair, a manufacturing defect was found and chassis was to be replaced. Therefore, I am of the view on the facts and circumstances of this case that a defective vehicle was sold to complainant

THERE is no doubt that the vehicle met with an accident. Opposite party No. 2 found the defect although the same was not complained of by complainant. This itself indicates that opposite party No, 2 was anxious to satisfy the complainant. THERE was delay in obtaining the chasis. In absence of better materials, I am not prepaired to accept contention of complainant that there was delay on account of negligence and laches of opposite party No. 2. Even if I would have come to conclusion that there was delay and laches, I would not have awarded damages on the basis of offers only. At least those who intended to engage the vehicle ought to have filed affidavit with materials as are available. I would have left complainant to approach civil Court to get damages. However, such question does not arise in the present case. Coming to question of giving direction, as I have held, the vehicle had some manufacturing defect. Howsoever experienced, manufacture of a vehicle shall always have defects. For the said purpose, terms in warranty for free service is provided. It is not known whether the defects as complained of are on account of defective chasis. Redressal agency can order under Section 14 to opposite party directing : (a) to remove defect; (b) to replace the goods; (c) to return the price; and (d) to pay compensation.

Although the wording of Section 14 are not very happy, I am inclined to hold that all the four directions are available to any goods purchased.

IN this case, there is no intentional defect. Major defect in chasis has been removed. Therefore, it is appropriate to give a direction to opposite parties to receive the defective vehicle from complainant and deliver back the same after removing all defects. Vehicle shall be delivered back within two months of the receipt of the vehicle and such defects shall be removed free of charge by opposite party No. 2. After defects are removed, the vehicle shall be tested by a competent technical person. Such person shall drive a new vehicle without load and the defective vehicle without load before defects are removed. The same test shall be conducted with permissible maximum loads. Again after removal of defect the same test shall be made. On certification by the technical person, complainant shall be intimated to receive the vehicle. IN case the intimation of receipt is more than two months after receipt, for each day of delay, complainant shall be paid compensation of Rs. 50.00. After the vehicle is made ready a fresh warranty shall be given for one year. Complainant is accordingly, allowed to the extent indicated above. No costs. Complaint allowed.