BAJAJ AUTO LTD vs NIRANJAN SINGH

THE District Forum, Jalandhar aide order dated July 2, 1996 allowed the complaint filed by Niranjan Singh with the directions to the opposite parties M/s. Bajaj Auto Ltd. the manufacturer and P.C. Jain, Proprietor, V.K. Automobiles its dealer to pay a sum of Rs. 11165.44 with interest @ 18% p.a. w.e.f. the date of deposit i.e. November 7, 1987 till payment alongwithRs.500/ - as costs of the litigation. The amount was deposited by the complainant, Niranjan Singh, a retired Head Master of Nakodar with the dealer as full price of Bajaj Chetak Scooter manufactured by M/s. Bajaj Auto Ltd. The manufacturer had issued a letter of allotment in favour of the complainant with the direction to the dealer to deliver the scooter. The amount was deposited on November 7, 1987 vide receipt No. 146. The date of delivery of the scooter was postponed from time -to -time by the dealer. A letter was written by the dealer to the complainant on February 8, 1989 that the complainant could take delivery of the scooter. In spite of that the scooter was not delivered though the complainant paid several visits. Ultimately, the complainant approached the manufacturer who vide letter dated June 6, 1993 informed the complainant that the matter was under consideration with correspondence with the dealer. Having tired in the matter of getting the scooter after payment of the entire price for couple of years, he approached the District Forum with the complaint under the Consumer Protection Act in December, 1993 with the direction to me opposite parties to deliver the scooter, and in case they were unable to do so to refund the amount alongwith interest @ 18% p.a. He also claimed a sum of Rs. 1000/ - only as compensation on account of loss and mental torture. On notice of the complaint, the manufacturer, the appellant filed written statement taking preliminary objections. The com - plaint was not maintainable; the complainant was estopped from filing the complaint. The complainant did not approach the District Forum with clean hands and had concealed true facts; the complaint was barred by time; there was no promise or contract between the complainant and the manufacturer. On merits, the facts relating to booking of the scooter on deposit of the money with the dealer was simply denied but not specifically as such facts related to opposite party No. 2, the dealer. There was no specific denial with respect to writing letter dated June 6, 1993. It was asserted mat the price of the scooter was paid to opposite party No. 2, the dealer and there was no direct payment made by the complainant to the manufacturer. Thus, the manufacturer was not to refund the amount or delivered the scooter to the complainant. No written statement was filed by the dealer. The complainant filed affidavit of his father Surjit Singh and the documents, receipt for depositing Rs. 11165.44 on November 7,1987, copy of the letter of V.K. Automobiles dated February 1, 1989, postponing the date of delivery to March 1, 1989, copy of the letter from Bajaj Auto Ltd. dated June 6,1993 to the effect that the matter was being looked into by referring the complaint to the concerned personal. No affidavit on behalf of the opposite parties was filed and no documents were tendered. The District Forum passed the impugned order as referred to above. The appeal is only by the manufacturer. The dealer has not filed any appeal, although the order was passed against both the opposite parties. Since, no appeal has been filed by the dealer, the order against him would remain intact.

LEARNED Counsel for the appellant, the manufacturer has pressed into service all the technical pleas which were taken up in the preliminary objections. It has been argued that the cause of action accrued on March 1,1989, the date of delivery communicated to the complain - ant as mentioned in the complaint itself. The present complaint having been filed on December 10,1993 is barred by time in view of Section 24(a) of the Consumer Protection Act, which provides a period of two years for filing the complaint. In the alternative, it has been argued that if the period of three years was to apply, as the amendment of Consumer Protection Act was made vide Act 50 of 1993 even then the complaint would be barred by rime. There is fallacy in the argument. The period of limitation is to commence from the date of accrual of cause of action. Simply by fixing the date of delivery of the scooter as March 9,1989, does not fix the date of accrual of cause of action. The plea of the complainant supported by affidavit of Surjit Singh, father of Niranjan Singh, complainant is that the scooter was not delivered on that date as the date was being postponed orally. Rather several visits were made thereafter but scooter was not delivered. It is a case where entire price of the scooter then prevalent was taken by the dealer as back as November 7, 1987 and the scooter was expected to be delivered within a reasonable time. The limitation for filing the complaint would start when the opposite party refused to deliver the scooter and not merely postpone the date of delivery. Factually, none of the opposite parties refused to deliver the scooter that it could be said that cause of action accrued for filing the complaint. As already stated above, one of the prayers in the complaint is for direction to the opposite parties to deliver the scooter which had been booked and for which the entire sale price had been paid. In such a situation, the cause of action would be re -occurring and the complaint could not beheld to be barred by time. Looking from another angle, the complaint cannot be held to be barred, by time as the complainant approached the manufacturer, the appellant sometime prior to June 19,1993 and the appellant wrote the letter dated June 6, 1993, which fact is not denied indicating that the matter was still under consideration of the appellant and was being looked into. This may not be an acknowledgement as is stated by Counsel for the appellant but it does suggest that cause of action as such had not accrued as there was no specific assertion made in the letter declining to deliver the scooter. Even from that date, the period of limitation is to be computed, the complaint would be within time. The com - plaint is, therefore, held to be within time.

IT has been argued by learned Counsel for the appellant, the manufacturer, that there was no privity of contract between the appellant and the complainant. Qua the appellant, the manufacturer, the order of the District Forum cannot be sustained. An attempt was made to make reference to copy of the agreement entered into between the manufacturer and the dealer, the opposite parties that as between them the sale of scooters was from principle to principle. No useful purpose would be served by taking that document on the record for the simple reason that this document does not indicate financial relationship or dealings between the opposite parties that their legal rights in respect of the scooters supplied could be adjudicated, such as the total amount of dealership money collected by the manufacturer from the dealer or money kept as security and further how the amounts collected by the dealer was to be forwarded to the manufacturer, representing costs of the scoot - ers in advance or otherwise or that the money collected by the dealer used to be sent in the account of the manufacturer and after some time when deliveries were effected, the accounts were gone into. One fact, which is not disputed, is that opposite party No. 2 was an authorised dealer in the matter of sale of the scooters manufactured by the appellant.

THE Consumer Protection Act is a social piece of legislation enacted to safeguard the interest of the consumers and at the same time exploitation by the manufacturer or traders of the consumers to be curbed. In case defect is found in the goods purchased by the consumer, he is to be compensated by the seller and of course as well as by the manufacturer of the goods. It is against them that a complaint can be filed by a consumer who has either purchased the goods which are found to be defective or otherwise he had hired service of the opposite parties and there is deficiency in rendering the same. The word opposite parties as such has not been defined in the Consumer Protection Act. The manufacturer word has been defined under Section 2(j) of the Act which reads as under: 2(j) "Manufacturer" means a person who - (i) makes or manufactures any goods or part thereof; or (ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others and claims the end product to be goods manufactured by himself; or (iii) puts or causes to put his own mark on any goods made or manufactured by any other manufacturer and claims such goods to be goods made or manufactured by himself.

The definition aforesaid is not merely limited to the actual manufacturer of the goods, which are subsequently marketed. Manufacturers, distributors or dealers through whom actually the goods are sold would also to be included in the definition of manufacturer. From that, it cannot be concluded that once the actual manufacturer had sold the goods or passed on the same to his dealer or authorised agent, his liability ceases. If that had been so, the entire object and purpose of the Act would be frustrated as the consumer would be left in lurch without any appropriate remedy against the appropriate party and the manufacturer would continue to exploit the consumers and eat up profit of the trade. No doubt, a manufacturer has a legal right to earn profits but at the same time he has legal obligation. If some defects are found in the goods manufactured or some deficiency in rendering service is there in this process of marketing, it would be included in the definition of service, particularly in the present case when the entire price of the scooter charged in advance by the authorised agent or dealer of the manufacture and the dates of delivery of the manufactured articles are given and postponed the only reason for the same would be non -availability of the manufactured articles and the wait is to enable the manufacturer to manufacture the article and subsequently deliver it to the consumer through the authorised agent. For all intends and purposes, the dealer would be an agent of the manufacturer and if there is a con - tract of rendering service on the part of the agent, principal would obviously be liable, if there is any deficiency in rendering service. The argument of Counsel for the appellant that there was no privity of contract directly between the manufacturer, the appellant and the consumer the complainant is therefore repelled. Learned Counsel for the appellant has argued that on the material produced, sale price of the scooter stands deposited with the dealer and in the absence of any evidence that the dealer had forwarded the same to the manufacturer, liability on the appellant manufacturer cannot be fastened. This contention again cannot be accepted for the reasons already recorded above. It is the appellant who is in possession of the relevant material concerning financial dealings with its dealers, which he has failed to produce before the District Forum or before this Commission. For the first time in appeal, such a question, which is dependent upon producing evidence, cannot be allowed to be raised. Otherwise, when the factum of agency or dealership between the opposite parties is not being disputed, it is to be held that the dealer was acting as an agent of the manufacturer and payment if any made to the dealer for all intends and purposes would be payment to the manufacturer. The dealer as well as the manufacturer would be liable in the facts and circumstances of the case as discussed above.

NO offer was made for delivery of the scooter to the complainant during the period the complaint remained pending before the District Forum or during the pendency of the appeal in this Commission. Rather the complainant has not filed any separate appeal, challenging order of the District Forum for further direction to the opposite party for delivery of the scooter. The complainant felt satisfied with the amount of compensation as awarded by the District Forum. Much importance cannot be attached in view of the discussion referred to above to one line, which was added in hand in the order of the District Forum "opposite party 1 has admittedly taken over all assets and liability of opposite party 2 in Para 5 of the judgment of the District Forum. The contention of Counsel for the appellant was that there was no such admission either in the written statement filed by the opposite party No. 1, the appellant or in any of the documents produced before the District Forum. Even if this line is removed from the order, legal position would remain the same as discussed above. Both the opposite parties would be liable for the relief granted in the complaint. The appellant cannot escape liability on the technical grounds as suggested above.

FOR the reasons recorded, this appeal fails and is dismissed with costs of Rs. 2000/ - to be paid to the complainant by the appellant. The order of the District Forum is affirmed. It is left between the manufacturer and the dealer interse to settle their scores at their own level.