BAJAJ AUTO LTD vs ASHOK KUMAR

THIS revision is directed against the order dated 15. 12. 2004 of State Commission, Delhi disposing of appeal against the order dated 24. 9. 2004 of a District Forum with the modification that on receiving the scooter in question from the respondent the petitioner No. 1 will pay amount of Rs. 25,000 as the depreciated value of the scooter as it had been driven for more than 6,000 kms. The District Forum had allowed the complaint with direction to the petitioner to replace the scooter with a new one of the same make and if that make has been discotinued, then to replace the scooter of the choice of the respondent. If the price of such replacement exceeds Rs. 30,366 and interest given @ 9% p. a. from 9. 1. 2000 till date of replacement, the balance will be paid by the respondent. If such price is less than this amount the balance will be remitted to the respondent who was also to be paid Rs. 2,000 as cost.

ON 9. 1. 2000, the respondent/complainant had purchased the scooter in question from petitioner No. 2/opposite party No. 1 for Rs. 30,366. Respondent alleged that the scooter developed defects which could not be rectified even by Kirti Nagar Workshop of the petitioners. Complaint attributing deficiency in service and seeking certain reliefs filed by the respondent was contested by the petitioners alleging that the respondent did not avail of five mandatory services and the warranty had, thus, become void. It was denied that the respondent ever complained of any defect during his visit to the petitioner''s workshop. It was, further, denied that there was any manufacturing defect in the scooter. Submission advanced by Mr. Rajesh Tyagi for the petitioners is that the details of alleged defects have not been disclosed in the complaint and the rejoinder filed by the respondent cannot be read as part of the pleadings. Workshop of the manufacturer where the scooter was taken for repairs has not been impleaded as a party in the complaint nor the Job Cards filed. Report of Malhotra Associates was not filed along with the complaint and this report having been obtained after about 17 months of the purchase of scooter cannot be relied upon. Copy of the complaint which is cryptic is at pages 23 and 24 while that of the incomplete rejoinder at pages 27 to 29. As may be seen from the order of District Forum, the objection in regard to rejoinder not being part of pleadings and the complaint being vague was also raised on behalf of the petitioners but was negated by the Forum for cogent reasons recorded by it. We are unable to take a view different from that taken by the District Forum in the matter.

Manufacturer of the scooter has been arrayed as petitioner No. 1/opposite party No. 2 by the respondent. In our view, the complaint of the respondent will not fail even if the workshop where the scooter was repaired, had not been impleaded as a party in the complaint.

COPY of the report dated 9. 7. 2001 of Malhotra Associates and Chartered Engineers is at page 30. This would show that it was prepared after physical inspection of the scooter. As per this report, the scooter had inherent problem of wearing clutch plates and current failure and piece is defective which needs to be replaced. Order passed by Fora below would show that the affidavit of V. K. Malhotra in support of this report was filed by the respondent. No grievance can be made of this report not having been filed along with complaint as the respondent chose to file it at the stage of producing evidence. Order of the District Forum notices that said Shri Malhotra was not subjected to cross-examine on behalf of the petitioners with the result the opinion as given in the report goes unchallenged. This report proves that the scooter was having manufacturing defect. To be only noted that complaint was filed with a short span of 8 months of the purchase of scooter by the respondent. Non-filing of job cards in view of this report is not fatal. By now, the scooter may have become junk and will be of no use to the petitioners. Since the scooter was used for sometime by the respondent, the order of the State Commission deserves to be modified to the extent that the respondent will keep the scooter with him and petitioner No. 1 will pay by way of compensation to the respondent a lump sum amount of Rs. 20,000. Order accordingly. Revision Petition stands disposed of. Revision Petition disposed of.