ANBROS MOTORS (P) LTD. vs Om Parkash Seth

THE appellants, M/s. Anbros Motors (P) Ltd., SCO No. 864, NAC, Manimajra (U.T.), M/s. Anbros Motors (P) Ltd., 176, Industrial Area, Phase-1, Chandigarh, and Kinetic Motors Company Limited, Neeta Towers, Mumbai-Pune Road, Depodi, Pune have filed this appeal against the order dated 15.12.2000 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II) in the Complaint Case No. 986 of 1999. THE District Forum-II has allowed this complaint for a consolidated compensation of Rs. 5,000/- including the costs of the case.

AGGRIEVED against the impugned order of the District Forum-II, the present appeal has been preferred saying that the compensation awarded by the District Forum-II to the complainant is on the higher side. Briefly, the respondent/complainant, Sh. Om Parkash Seth, SCO 153 (1st Floor) Sector 28-D, Chandigarh purchased a Kinetic DX M Blue Colour Scooter with Engine No. 953945 and Chassis No. 958262 from M/s. Anbros Motors (P) Limited for Rs. 33,750/- vide their Invoice No. 026 dated 16.5.1999 (Annexure I) and Money Receipt Nos. 98068 and No. 98069 dated 16.5.1999 for Rs. 26,250/- and Rs. 7,500/- respectively. The respondent/complainant purchased the said vehicle only because of its being a self start, for his convenience. The averments made in the complaint show that right from the day one of the purchase of scooter, it started giving trouble to the respondent/complainant - one of its purchase and hind wheel drum got so over-heated even after a small run of 4-5 kilometres. The respondent/complainant took the scooter to the appellant/O.P. No. 1 on 25.5.1999 and complained about the unsatisfactory performance of the scooter. He left the scooter over-night for its repair and the next day he was told that there is no starting trouble and he should not worry if the scooter gets overheated which will vanish gradually. It was on 25.7.1999 that the respondent/complainant while coming to Panchkula from Chandigarh, the hind wheel of the scooter got suddenly stuck up and jammed on the backside road of the Sector-11, Panchkula. The respondent/complainant loaded the scooter on a Rickshaw and took the same to the workshop of the appellant/O.P. No. 1 on 28.5.1999. The mechanic at the workshop after checking and washing some parts with petrol told the respondent/complainant that now the scooter will work, though the respondent/complainant was not satisfied. Therefore, the respondent/complainant lodged a complaint with the appellant/O.P. No. 1 in writing (Annexure-2). The manager of the appellant/O.P. No. 1 informed the respondent/complainant that there was no use of lodging complaint with them and advised him to write to the manufacturer Company. The respondent/complainant consulted a private mechanic, Mr. Harinder who noticed that a brake cane spring (brake lever controlling spring) had not been inserted with the result the brake shoes did not get totally free and the wheel got over-heated. The respondent/complainant got spring inserted at his own cost and thereafter the wheel was not getting too much hot. On the advice of the dealer, appellant/O.P. No. 1, the respondent/complainant made a complaint to the manufacturing Company at Pune (O.P. No. 3) vide letter dated 28.5.1999 (Annexure-3). The Company informed him vide their letter No. KMCL CC 03 JO 6043 - Y dated 7.6.1999 (Annexure-4) that they were advising their Service Engineer to inspect his vehicle thoroughly and would call for his report/comments. The appellant/O.P. No. 2 vide its letter dated 21.6.1999 (Annexure-5) asked the respondent/complainant to bring the scooter at their workshop for check up. On 21.6.1999 Mr. Kelkar, the Service Engineer asked the respondent/complainant to leave the scooter with them and collect the same in evening. The scooter was delivered to him only next day with an assurance that it would not give any trouble but the scooter continued to give starting trouble to the respondent/complainant. The manager at the workshop of the appellant/O.P. No. 2 told respondent/complainant that the said scooter will get set after 1st and 2nd service.

The respondent/complainant got the first free service of the scooter on 25.6.1999 but the situation remained the same. The respondent/complainant brought the same fact of problems in scooter to the notice of the appellant/O.P. No. 3 vide his letter dated 9.7.1999 (Annexure-6). The matter was taken by the appellant/O.P. No. 3 with their Area Service Manager (North and East). The next day in the morning at about 10.30 a.m., Mr. Kelkar and Mr. Uppal with appellant/O.P. No. 2 came to his residence and the scooter started by self-start. The respondent/complainant was satisfied at that particular moment but his satisfaction was short lived as their efforts proved valid for one day. The second free service was carried out on 25.8.1999. He paid Rs. 30/- for the replacing engine oil. The problem continued and every time when the respondent/complainant complained. The third free service was done on 26.10.1999 at the workshop of appellant/O.P. No. 2. The self-start did not pick up even after resting for 2-3 hours. The manager of the workshop expressed his helplessness except asking the respondent/complainant to leave the scooter with them but they were not ready to give any vehicle to the respondent/complainant for his use during the period the scooter was kept by them. The respondent/complainant, being a retired officer from the postal department and having crossed 71 years of age felt highly aggrieved. In view of this he filed the complaint bearing No. 986 of 1999 in the District Forum-II and prayed for the replacement of the scooter with a new one and compensate him with a sum of Rs. 30,000/- for mental agony and Rs. 40,000/- for physical damage caused to him.

IN reply, the appellants/O.P. Nos. 1 and 2 contested the complaint case and they filed a joint reply saying that whatever defects were brought to their notice the same were removed and all the allegations made in the complaint case had been denied and contended that there is no deficiency in service on the part of appellants/O.P. Nos. 1 and 2. They have not denied the purchase of kinetic scooter aforesaid by the respondent/complainant vide their INvoice No. 026 dated 16th May, 1999 from the appellant/respondent No. 1, who is the authorized dealer of the appellant/respondent No. 3. They contended that the vehicle was in perfect condition when it was delivered by the appellant/O.P. No. 1 to the respondent/complainant and no complaint was recorded during delivery time. The respondent/complainant had also test ridden the vehicle during the delivery time. He purchased the scooter only when he was entirely satisfied with the vehicle and signed the warranty registered card (Annexure I). It has been further contended in the reply filed by the appellants/O.P. Nos. 1 and 2 that the appellant/O.P. No. 2 came to know about the respondent/complainant scooter problem only through the Tribune dated 20th June, 1999. Before that the respondent/complainant had never approached the appellants/O.P. Nos. 1 and 2 regarding the said problems. The appellants/O.P. Nos. 1 and 2 went to the extent of sending their Service Engineer Mr. S.S. Kelkar for inspection of the respondent/complainant''s scooter at his house in the morning as well as in the evening and scooter self started for which the respondent/complainant was fully satisfied. IN all the three free services, the scooter was duly attended and all the defects were removed and the defective parts were also replaced free of cost during the warranty. The appellant/O.P. Nos. 1 and 2 have contended in their reply that they showed willingness to sort out the complaints of the complainant whenever he had approached them. IN the interim period the District Forum-II after hearing the case on 11th April, 2000 instructed the appellant/O.P. Nos. 1, 2 and 3 to rectify the problem of the respondent/complainant''s scooter. The appellant/O.P. Nos. 1 and 2 had already approached the respondent/complainant to bring his vehicle to rectify it at the workshop of the appellant/O.P. No. 2 vide letter No. AM:KIN/20-21/00016 dated 10.4.2000 and the respondent/complainant was also approached by the appellant/O.P. No. 3 vide its letter dated 12.4.2000 through the Service Engineer, Mr. S.S. Kelkar but the respondent/complainant did not turn up. IN view of this joint reply the appellant/O.P. Nos. 1 and 2 contended that there is no deficiency in service on their part and they have attended the vehicle as and when brought to the workshop and satisfied the respondent/complainant fully. The appellants/O.P. Nos. 1 and 2 have observed that as and when the scooter was brought with the defects to them, it had been tampered with by a mechanic from outside who did not have the sufficient knowledge about this particular scooter. Therefore, the defects continued to occur. The respondent/complainant was explained that the defects should be brought to the notice of appellants/O.P. Nos. 1 and 2 and not to take the scooter to any other mechanic for rectification of the defects. In reply filed by appellant/O.P. No. 3, it has been contended that the complaint of the respondent/complainant is frivolous. In para 3 of the reply, O.P. No. 3 has submitted that they are ready to demonstrate before this Forum smooth functioning of self-start and per-formance of the scooter with prior inspection and necessary adjustment, if required, in the vehicle. The appellant/O.P. No. 3 has further submitted that the respondent/complainant has filed the complaint with ulterior motive to harass the opponents and to obtain unlawful gain. The respondent/complainant is not entitled the replacement of the scooter, Rs. 30,000/- towards mental agony and Rs. 40,000/- towards physical damage, whatsoever.

WE have heard the learned Counsel for the appellants, Mr. Davinder S. Uppal, Advocate and Mr. Om Parkash Seth, respondent in person. WE have also perused the record of the complaint case along with the evidence and other relevant documents adduced therein with utmost care and circumspection. Learned Counsel for the appellants, Mr. Davinder S. Uppal, Advocate contended that the respondent/complainant is in the habit of tampering with the brand new scooter from an outside mechanic which resulted in more defects in the said scooter. The defects, during the three free services had been rectified to the full satisfaction of the respondent/complainant being under warranty. As a matter of fact, tampering of the scooter by an outside mechanic is the breach of warranty which could have been applied in his case. But as a goodwill gesture towards the respondent/complainant being an old man, they overlooked these mistakes on the part of respondent/complainant and rectified the defects of the scooter by replacing the defective parts worth more than Rs. 1,000/- free of cost. The respondent/complainant, Sh. Om Parkash Seth confirmed that he did take scooter to the outside mechanic for repairs as the mechanic was available next door. He contended that he suffered great mental and physical harassment due to the non-functioning of his starter and scooter stopping on the way number of times for which he should be compensated as prayed in original complaint.

THE District Forum-II, dealt with this complaint in detail after examining the evidence and other documents adduced in the record of the complaint case. It has been brought out in para 4 of the order that the O.Ps. went out of way to rectify the defects. THE relevant portion of the para 4 is reproduced as under : "4. ......... O.P. took steps to rectify the defect in the vehicle. THE complainant is an old man and he had already taken his vehicle to the workship of O.P. No. 1 repeatedly. On 13.11.2000 we passed an order whereby on the undertaking of the representative of the O.P. it was ordered that the O.P.''s mechanic would visit the complainants house at 9.00 a.m. on 26.11.2000 and would carry out the required repair. This was done and the matter was taken up before us again on 28.11.2000. On this date, the complainant accepted that the starting trouble of the scooter was set right and that part of the machine was working alright. However, he wanted some more time to see that the repair carried out was effective. This is how the matter has been taken up by us again today on 15.12.2000 and in the course of arguments, the complainant accepted that the system was working alright. All these factors taken together prove deficiency in service on the part of O.Ps. inasmuch as the pointed defects in the vehicle sold to the complainant were not removed completely and effectively.

IN view of the foregoing discussion, we are of the considered opinion that the District Forum-II has rightly recorded a finding regarding the deficiency in service on the part of the opposite parties. At this stage, the learned Counsel for the appellant drew our attention to the consolidated compensation of Rs. 5,000/- awarded against the appellant to the complainant/respondent and urged that despite making all endeavours to rectify the defects in the scooter as and when brought by the complainant before the appellants, the appellants have been saddled with the amount of Rs. 5,000/- as the consolidated amount of compensation. We have already noticed above that the respondent had to run on several occasions to get his scooter repaired properly though he himself on some occasions was responsible for taking the scooter for repairs to private mechanic which was not covered under the terms and conditions of warranty. We have also noticed that the appellants condoned the breach of the terms and conditions of the warranty and agreed to abide by the terms and conditions of the warranty and attended to the repairs of the scooter. The appellants have claimed that they attended to the scooter notwithstanding the breach committed by the complainant/respondent as a goodwill gesture. We have already held above that the respondent being a senior citizen was put to lot of harassment and the District Forum-II has in that aspect rightly recorded a finding of deficiency in service but looking to the entire facts and circumstances of the case and also considering the fact that the respondent himself violated the terms of warranty by approaching the outside machanic for the repair of the scooter, the consolidated amount of compensation of Rs. 5,000/- awarded by the District Forum-II is slightly on the higher side and it should be reduced to Rs. 4,000/- which in our considered view would be an adequate amount that would meet the ends of justice. Resultantly, the appeal is partly allowed and the order of the District Forum-II, U.T., Chandigarh is modified to the extent that the consolidated amount of compensation and costs is reduced to Rs. 4,000/- from Rs. 5,000/-. Copies of the order be supplied to the parties free of charges. Appeal partly allowed.