A.K.ADHIKESAVALU NAIDU vs C.BALACHANDRA

THIS appeal is directed against the order dated 27.11.1996 in O.P. No. 32/94 on the file of the District Consumer Disputes Redressal Forum, Vellore.

THE appellant is the complainant while the respondents are the opposite parties. The short facts leading to the filing of this appeal may in brevity be stated in order to understand the crux of the issue arising for consideration.

The complainant is an agriculturist by name one A.K. Adikesavalu Naidu.

THE opposite party No. 1, Re-Union Truck Motors, located at Vellore, is the dealer of the 3rd opposite party, manufacturer Mahindra and Mahindra Limited, having their office at Madras. THE 2nd opposite party is the branch office of the 1st opposite party. The complainant, agriculturist, it appears, placed an order for the purchase of a tractor with the dealer 1st opposite party. He also gave a demand draft for a sum of Rs. 1,88,670.63 in favour of the branch office of the 1st opposite party, namely the 2nd opposite party. The tractor was ultimately supplied on 20.8.1993. Within six days of the delivery of the tractor, the complainant sent a letter dated 26.8.1993 to the opposite parties 1 and 2 complaining of certain defects in the new tractor so purchased. The defects referred to in an explicit fashion in the said letter was relatable to the crack in the bell housing unit. The letter had been acknowledged by the opposite parties 1 and 2. The opposite parties 1 and 2 also informed the complainant by their letter dated 25.9.1993 stating that they placed an order with the manufacturer, the 3rd opposite party, for the supply of the bell housing unit and the moment the said unit had been received by them, they would be replacing the bell housing unit in the tractor. The bell housing unit in the tractor was somehow or other replaced on 2.12.1993.

THE complainant would however allege by way of incorporation of averment in the complaint that there was certain manufacturing defects in the said tractor purchased. Those defects consisted of the crack in the cultivator and also the defective nature of the bumper apart from the crack found in the bell housing unit. THEse defects, according to the complainant, were not at all rectified either by the dealers, opposite parties 1 and 2 or by the manufacturer. Alleging the factors as above, he knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint. The opposite parties 1 and 2 dealers in pith and substance would contend that there was no deficiency in service at all on their part. They could replace the defective bell housing unit in the tractor on and when they are able to get the supply of the unit from the manufacturer and they, as a matter of fact, replaced the bell housing unit the moment they received the unit from the manufacturer, the 3rd opposite party. The Service Engineer of the manufacturer, of course, inspected the tractor and found the crack in the bell housing unit as complained of by the complainant. No other defects were noticed by him in the said tractor. As such, the complaint is liable to be dismissed. The 3rd opposite party, manufacturer, would however contend that there was no deficiency in service on their part and there was no manufacturing defect at all in the tractor so delivered to the complainant through their dealers.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the opposite parties and consequently dismissed the complaint without costs.

AGGRIEVED by the order as above, the complainant resorted to the present action by engaging a Counsel of his choice namely learned Counsel Mr. P. Mani and Mr. V. Murali. On service of process, the respondents/opposite parties 1 and 2 entered appearance through a learned Counsel of their choice namely Mr. V. Karthick and Mr. D. Venkatesh.

Despite service of process, respondent No. 3/opposite party No. 3, did not opt to enter appearance by engaging a Counsel of its choice. They virtually remained absent and no representation is made on its behalf.

THE fact that the said learned Counsel representing the appellant/complainant were absent does not mean that we cannot dispose of the appeal on merits, of course, after hearing the arguments of learned Counsel representing the respondents/opposite parties 1 and 2 and on perusal of the materials placed on record. That is exactly what we have done in this case. Learned Counsel Mr. D. Venkatesh, representing the respondents/opposite parties 1 and 2 would with all force and vehemence contend that the crack in the cultivator and damaged condition of the bumper as alleged by the complainant ever since the date of the purchase of the tractor, cannot be anyone other than the figment of imagination on the face of the contents of Ex. A1 letter dated 26.8.1993 written by the complainant to the opposite parties 1 and 2. He would further submit that despite the fact that there is a delay in replacing the defective bell housing unit for nearly 3 to 4 months by the opposite parties 1 and 2, it cannot at all be stated that the complainant is entitled to any compensation for mental agony and anguish the complainant would have suffered by the occuring of such long delay inasmuch as complainant did not at all pray for any such relief in the complaint.

WE may now consider the first fang of the argument of the said learned Counsel. No doubt true it is that the complainant claimed by way of specific averment in the complaint that the tractor he had purchased through the dealers, opposite parties 1 and 2 was suffering from certain defects such as crack in the cultivator, damaged condition of the bumper and also the defective nature of the bell housing unit. If really, the three defects as pinpointedly stated in the complaint had been in existence ever since the date of purchased of the tractor, the complainant in all probabilities would have specifically mentioned the existence of those defects in the earliest letter he has written namely Ex. A1 dated 26.8.1993. When we perused the said Ex. A1 letter, we are able to discern that he had complained of the defect in the bell housing unit alone and he has not made a murmur or whisper as respects the defects he had complained of relating to the bumper and the cultivator. In such state of affairs, to say that the tractor he had purchased had suffered certain defects in respect of cultivator and bumper cannot at all be acceded to, on the facts and in the circumstances of the case as rightly contended by learned Counsel appearing for the respondents/opposite parties 1 and 2. We may now enter into arena of discussion as relatable to the second fang of his submission. No doubt true it is that the complainant did not at all incorporate any averment in the complaint that as a consequence of the delayed delivery of the tractor, he had suffered mental agony and anguish for which he has to be suitably compensated by way of ordering compensation in a specified or reasonable amount. In the absence of such an averment, according to learned Counsel appearing for the respondents/opposite parties 1 and 2, the Forum below or the Commission constituted under the Consumer Protection Act, 1986 (for short, "the Act") is not at all empowered to pass any order relatable to the grant of compensation. To this sort of a submission, we are unable to affix our seal of approval in the light of the law having been evolved on this aspect of the matter. This sort of a question had been raised before us in A.P. Nos. 664 and 665/97 and we, by our order dated 4.10.2000 observed in para 18 of the said order as below : "18. Learned Counsel M. Swarnalatha, would urge that the Forum below committed grievous error in awarding compensation to the mental agony and anguish caused to the complainant when especially the complainant had not claimed such relief in the complaint. To such an argument, we are not able to affix our seal of approval on the facts and in the circumstances of the case. In litigations instituted before the Fora or the Commission constituted under the Act, there is no need or obligation on the part of the complainant to ask for a specific relief and the Consumer Forums are not debarred from granting reliefs not prayed for by the complainant in the complaint. If the facts and circumstances of the case warrant the grant of relief not prayed for by the complainant, then the Fora constituted under the Act would definitely be entitled to grant such relief befitting the situation and that is exactly what the Forum below had done in the instant cases. If any case law is needed for such a proposition of law, we may refer to the case of District Manager, Telephones, Patna & Anr. v. Dr. Tarun Bharthuar & Anr., 1986-94 National Commission and Supreme Court on Consumer Cases Page 228."

The complainant in the instant case purchased the tractor at a point of time when the cultivating season admittedly was at its peak and on this aspect of the matter, necessary and requisite averment are available in the complaint. No material had been placed on record by the opposite parties that that season was not a heavy cultivating season. The tractor had been purchased by the complainant for the purpose of ploughing his lands and not keeping it as an ornament or a status symbol. Admittedly, the defects in the bell housing unit had been noticed six days after the purchase of the tractor and this aspect of the matter had been complained of by the complainant by writing Ex. A1 letter to the opposite parties 1 and 2 and they also acknowledged the same as evidenced by Ex. A2. This apart, the opposite parties 1 and 2 also wrote a letter Ex. A3 dated 25.9.1993 to the complainant informing him that they would replace the defective bell housing unit in the tractor as and when they get the supply of such unit from the manufacturer, the 3rd opposite party. No materials are placed on record by the opposite parties 1 and 2 to point out the exact time or date on which they got the bell housing unit from the 3rd opposite party, manufacturer. However, the fact remains that the bell housing unit in the tractor had been replaced by the opposite parties 1 and 2 on 2.12.1993. As such, there is a delay of nearly about 3 months in replacement of such defective unit.

THE opposite parties 1 and 2 being dealers are expected to render post sales service after effecting the sale of the tractor to intending persons like the complainant. THE complainant has to necessarily take the tractor for the purpose of service only to a dealer like the opposite parties 1 and 2 from whom he has purchased the tractor. THE moment the complainant complained of any defect in anyone of the parts of the newly purchased tractor, it behoves upon the opposite parties 1 and 2 dealers to replace the parts immediately without any loss of time. Such a sort of a service can be rendered by the dealers like the opposite parties 1 and 2 only when they are equipped with all sorts of spare parts as respects the tractor sold and in the absence of good stock of spare parts in their stocks, certainly a delay would be caused in replacement of spare parts for a particular tractor as in the case of the complainant by placing order to the manufacturer, the 3rd opposite party. We are of the view that not having adequate stock of replacement of parts in service centres like the opposite parties 1 and 2/dealers itself suggest the callousness or negligence on their part in rendering service to their customers like the complainant. THErefore, the time taken by the opposite parties 1 and 2/dealers nearly about 3 months in replacement of the defective bell housing unit would definitely be stated to constitute deficiency in service on their part.

BY the delay so caused, it is legitimately plausible or possible to infer that lot of mental agony and anguish could have been caused to the complainant and for the agony and anguish he had suffered, he has to be adequately compensated by making an award in a reasonable sum. The fact that he had not claimed any such relief is of no consequence on the face of the decision in District Manager, Telephone, Patna & Anr. (supra). The computation of compensation in a quantified amount, is of course, a very difficult job to be done in such a situation. There is always some sort of a speculation in making computation of such compensation. This sort of a speculation cannot at all be avoided and taking that aspect of the matter into consideration, we rather feel that on the facts and in the circumstances of the case, if a compensation quantified in a sum of Rs. 10,000/- for the mental agony and anguish that had been caused to the complainant, it won''t be besides justice. We, therefore, accordingly do so.

In fine, the appeal is partly allowed and the opposite parties 1 to 3 are directed to pay to the complainant a sum of Rs. 10,000/- by way of compensation towards mental agony and anguish he had suffered for the long delay caused in replacement of the bell housing unit to his tractor within a month from today or otherwise the amount shall carry interest @ 18% p.a. till the date of realisation. We also make it clear that if the order of ours is not complied with by the opposite parties 1 to 3 within a month from the date of receipt of our order, it shall be open to the complainant to institute proceedings under Section 27 of the Act. We however make no order as to costs on the facts and in the circumstances of the case. Appeal partly allowed.