ABHAYA KUMAR PANDA vs BAJAJ AUTO LIMITED.

THE appellant complainant had purchased a Bajaj Auto Trailer from the respondent No. 2 (M/s Utkal Auto, Cuttak) in December, 1988 for self-employment to earn livelihood as a carrier of goods for delivery at different places. As the Bajaj Auto Trailer was found to be defective and had to undergo repairs many times including replacement of chassis he moved the State Commission, Orissa, under the Consumer Protection Act, 1986 with a claim of Rs. 1,06,244/- with pedentilite and future interest at the rate of 12.5% p.a. alongwith loss of income in future of Rs. 3,500/-p.m. and garage rent of Rs. 250/- p.m. where the defective auto trailer was remaining parked. The State Commission by its order of 23rd March, 1990 negative the contetnion of the respondents that the appellant complaint had purchased the vehicle for a commercial purpose and therefore was not a consumer and that in consequence the complaint was not maintainable under the Consumer Protection Act, 1986. The State Commission in its order of 23.3.1991 came to the finding that the purchase was for self-employment and not for a commercial purpose and therefore the complainant was a consumer and his complaint was maintainable.

FURTHER the Commission, on facts, found that a defective vehicle was sold to the complainant that the vehicle had some manufacturing defect (the chassis was defective and had to be replaced). In June, 1989 and that the cause of troubles of the vehicle was found to be the defective chassis. The State Commission honestly held that therefore held that there was no intentional defect and that the major defect in the chassis had been removed. It directed the respondent to remove all the other defects in the vehicle within a period of two months free of charge. A compensation of Rs. 50/- per day was required to be paid by the respondent for each day of delay in repairing within the period of time allowed. A fresh warranty was also be given for a period of one year for the repaired vehicle. The appellant has appealed against the order of the State Commission inasmuch as it was failed to require the respondents to replace the vehicle. It has also assailed the observation of the State Commission that in this case there was no intentional defect, inasmuch as, so far as the consumers are concerned, it is irrelevant whether the defects and deficiencies are intentional or not. He has further prayed that considering the defects and the failure of the Respondents to remove them inspite of several repairs having been carried out by the respondents the vehicle should have been ordered to be replaced. It is further submitted that the appellant will have to incur considerable expenditure on the loan it has raised from the bank to finance to purchase of the auto trailer and that because of the defective auto trailer his earnings suffered. He has therefore prayed for the replacement/return of the vehicle and payment of the adequate compensation.

IT is admitted by the respondents that the chassis was defective and had to be changed apart from the other repairs undertaken from time to time. In other words, the vehicle suffered from a major structural manufacturing defect. As such it should have been condemned by the manufacturers in the first instance itself instead of being sold to any customer. The failure to detect such major manufacturing defect also creates doubts whether the manufacturer has carried out proper quality control and testing of vehicle before delivery. Further when the major manufacturing defect in the vehicles was discovered, the manufacturer should have replaced it instead of repairing it. There is also merit in the contention of the appellant that it is not relevant under the Consumer Protection Act whether the defect in the goods supplied or deficiency in service rendered is intentional or not. The Consumer Protection Act, 1986, fixes liability in a species of torts in which intent is not relevant. This Commission find this necessary to emphasis this because the gravity of defects in any goods or deficiency in any service should not be minimized by considering whether or not the defects/deficiencies are intentional.

IN considering the reliefs to be granted to the appellant under Sec. 14 of the Act, this Commission is firmly of the opinion that mere removal to defect by way of replacement of chassis and carrying out the other repairs was not enough. As observed earlier, the manufacturer should not have sold initially a product which suffered from a major manufacturing structural defect. This should have been rejected or condemned at the stage of quality control examination and testing and if it escaped detection at these stages, the particular product should have been withdrawn from the market or from the consumer voluntarily once the manufacturer became aware that a wrong or defective chassis had been fitted to the vehicle. The appellant/complainant had paid for a new and a defect free vehicle and if it had any major manufacturing defect, it should have been forthwith replaced. It is not necessary for this Commission to go into other matters of details regarding repairs carried out, the allegations of improper use by the appellant etc. We therefore order as under: (i) The findings of the State Commission that the Appellant-complainant is a consumer and that the vehicle supplied was defective are confirmed. (ii) The respondent No. 1, the manufacturer should within six weeks from this date replace the vehicle by a new auto trailer of the identical specifications after verification by testing and inspection that it is free from defects. (iii) The new vehicle will have to be covered by usual warranty from the date of delivery.

(iv) The appellant should be reimbursed the interest he has had to pay to the Bank for the loan raised for the purchase of the vehicle from the date of delivery of the defective vehicle to the date of its replacement. (v) The Appellant is granted compensation for loss of earnings at the rate or Rs. 2,000/- p.m. from January, 1989 (the vehicle was delivered on 27.12.1988) till the day the vehicle is replaced. The appellant is granted Rs. 2,500/- as costs. (vi) The cross appeal No. 90/91 M/s. B.A.L. v. A.K. Panda and Anr. is also disposed by the above order.