ASHOK LEYLAND LIMITED vs Gopal Khan

THE facts of the present revision petition are as follows. Gopal Khan, complainant purchased a tusker truck from Rajesh Motors Agency Limited, Old Industrial Area, Delhi Road, Alwar. Respondent No. 2 in this revision petition, who is stated to be an authorized dealer of Ashok Leyland Limited, the petitioner, stock manufacture of this vehicle. On 27.4.2006, the driver of Gopal Khan, complainant was taking the said vehicle to Bihar near Barohi, District Hazaribabh. The said vehicle began to spurt oil from the back cum pressure after overheating. The said vehicle was sent to the workshop of Shri Sai Sales and Services, respondent No. 3 in this revision petition. On examination of the said vehicle, it transpired that three pistons had ceased and were broken. The complainant was also informed that the block cylinder had burst which apparently occurred due to a manufacturing defect. Respondent No. 3, accordingly, kept the said vehicle in its workshop for repairing the same. The complainant had to pay bills for Rs. 96,372 and Rs. 1,470.

ON 1.7.2006, the complainant filed a complaint before the District Forum Alwar, Rajasthan alleging manufacturing defects in the vehicle and sought refund of Rs. 97,845 towards amount spent by him from the petitioner and respondent Nos. 2 and 3. The District Forum allowed the claim and held that petitioner and respondent No. 2 were jointly and severally liable to pay a sum of Rs. 97,482 to the complainant. The State Commission also dismissed the appeal.

WE have heard the Counsel for the petitioner. First of all, it was argued that petitioner is a businessman who was using the vehicle for commercial purposes.

ON inquiry made from the Counsel for the petitioner, he submitted that no evidence was led in this context by any of the party. He submitted that petitioner did not state in his complaint that he is a consumer or his purpose was not to indulge in commercial activities. We have heard the above mentioned arguments. The Commission cannot assume that this vehicle was being used for commercial activity. The objection was raised by the petitioner and it was his duty to carry the ball in proving that this vehicle was indulged in commercial activity. In absence of such activity, no importance can be pinned with this argument.

THE submissions made by the Counsel for the petitioner was that the manufacturing defect does not stand proved and the respondent has been unnecessarily saddled with this liability. It was argued that provisions of Section 13(1)(c) of the Consumer Protection Act, 1986 were not complied with. In support of his submissions, he has cited an authority reported in M.R.F. Ltd. v. Jagdish Lal and Anr., II (1999) CPJ 47 (SC)=V (1999) SLT 16=III (1999) CLT 129 (SC)=AIR 1999 SC 2035, wherein it was held that: "4. Section 13(1)(c) of the Consumer Protection Act, 1986 provides as under: 13. Procedure on receipt of complaint (1) The District Forum shall, on receipt of a complaint, if it relates to any goods - (a)(b)... (c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of fifty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum. 4. A bare reading of Clause (c) would show that the District Forum, with a view to get proper analysis or test done, should obtain the sample of goods from the complainant and then followed the procedure prescribed in the said clause. In this case, the material on the record shows that the complainant had given the tyre and the tube which had burst, to the dealer, who in turn had sent it to the appellant. The procedure prescribed under Section 13(1)(c) of the Act was, therefore, not capable of being followed because the complainant was not in possession of the tyre and the tube. There is no material to show that the appellant had returned the tyre and the tube to the respondent. That being the factual matrix, we do not see how any fault can be found with the District Forum, the State Forum or the National Commission in the matter of not following the procedure under Section (13)(1)(c) of the Act "

LEARNED Counsel for the petitioner has invited our attention towards Engine Failure Analysis Report as - "Failure Due to: Oil starvation/Extended oil change/Wrong Oil grade/overload/crack/Low coolent level/Improper Maintenance of ...../ Mico Consequential Failure/ Leakage/Others ............................... (Specify) In case of leakage specify component with location - In case of crack specify component with location : Cr. Case 1st parent bore. "

In the next page, it further mentions: "Filter Condition: OK/Cracked/Punctured/Removed/Oil Level: OK/Less/ Top tank house was found to be internally flaked and replaced by customer. "

For the following reasons, we find no merit in these arguments. The State Commission was pleased to hold that: "The vehicle had run 70,553 kms. then on 27.4.2006 it began to release oil being heated at Kaswa Barahi District Hazaribagh, Bihar whereon he got done its service in the service station of opposite party No. 3 authorized serviced centre of Ashok Leyland whose job card and bill Exhibit-1 and Exhibit-2 have been produced and Exhibit-3 has also been produced by complainant whereby it came to the knowledge the three pistons had ceased and block of cylinder had burst which occurred due to manufacturing defect. Having received Rs. 97,842 from complainant on 12.5.2006, opposite party No. 3 gave the delivery of the Truck. " It was further held, "In this case authorized service center of Ashok Leyland has proved vide Exhibit-3 that Engine of the vehicle had ceased and cylinder block had burst. In this regard, he has also presented job card Exhibit-1 and 2 bills, etc. It is nowhere mentioned that the vehicle has ceased as Engine Oil was not provided in proper quantity. " Hence it appears that there was manufacturing defect in the vehicle during warranty period. In each case, it is not necessary to obtain expert report separately. Appellant/opposite party No. 1 is bound by the report of their authorized service centre.

THE above cited authority has got no application to the facts of the present case. It is apparent that facts of this case speak for themselves. As many as two Experts have given the report. First the vehicle was examined by the respondent No. 3 and thereafter by the petitioner itself. The manufacturing defect stands proved on the record. The fact that 3 pistons had ceased and block of cylinder had burst itself proves the manufacturing defect on the part of the respondent No. 1. That situation was never denied. Under these circumstances, the non-examination of another expert is not at all essential. The petitioner itself did not rebutt the said evidence by producing the expert before this Commission. The revision petition is meritless and is, therefore, dismissed. Revision Petition dismissed.