DEPUTY GENERAL MANAGER, (SERVICE), SERVICE DEPTT. BAJAJ AUTO LTD. vs BHIMSEN SAHU

THIS appeal is against the order dated 25.11.1997 of the District Forum, Cuttack directing the opposite party No. 2 to take back the scooter and replace the same with another scooter free from defect or refund the cost of the scooter along with interest at the rate of 18 per cent as well as to pay compensation of Rs. 2,000/- for the harassment and mental agony under gone by the complainant and Rs. 500/- towards costs. The complainant, an Advocate, approached the District Forum claiming that being lured by the publicity of the Bajaj Auto Ltd. opposite party No. 1, that the new model Bajaj Classic Chetak Scooter would given a highly economical fuel consumption of 75 kms. per litre, the complainant after disposing his scooter purchased the present one but found the same to be defective in many ways, for which he had to rush to the servicing centre time and again. The main allegation of the complainant was that not to speak of the vehicle giving mileage of 75 kms. per litre as promised, it hardly achieved even the 50 kms. mark per litre in Cuttack City.

BOTH the opposite parties f''Jed a version where they admitted the sale but averred that they did not promise the way the complainant claimed with regard to the mileage but they had advertised stating that it would achieve 75 kms. per litre under test condition and 56 kms. under city condition and in actual use under ordinary city condition it would give 50 to 55 kms. with good maintenance with regard to the lubricants used. The District Forum found that the assurance for minimum petrol consumption remained in letters only and even on a test during the pendency of the case on the direction of the Forum on 23.3.1997 the consumption was found to be 40 kms. per litre. On this basis the Forum granted the reliefs claimed.

We have heard the learned Counsel for the appellant as well as Mr. Sahoo the complainant himself. The admitted case of the opposite party is that in fact they brought out an advertisement in respect of this particular model mat it would give mileage 75 kms. per litre. They have failed to prove by evidence that this particular vehicle of the complainant at any point of time gave this mileage as advertised by opposite party No. 1. They have also failed to prove that as to in what defective manner the complainant maintained the scooter for which the mileage given was so low as complained. So much so there is no material from their side if any of the scooters of this particular model ever reached this mileage. Since they failed to prove this we are bound to hold that because of some inherent defect in the scooter the same could not give the assured mileage. The opposite party No. 1 in bringing out such an advertisement certainly gave an impression to the complainant that this model was an economic model and in fact like many other like minded customers the complainant choose to go for the particular model. Thus the complainant purchased this scooter because of this assurance. Though the Forum below has held that this was an unfair trade practice by the opposite parties, we do not find any material to hold that in this case it was an unfair trade practice on the part of the opposite parties. No doubt the complainant as an individual has been dissatisfied with the performance but there is no material on the record to hold that any of this particular scooter had manufacturing defect and did not satisfy the assured mileage. In the absence of any evidence mat all those scooters of this model were in fact had unsatisfactory performance, attributing unfair trade practice for this loan transaction would not be proper. But since the complainant as a consumer is dissatisfied with the unsatisfactory- performance of the scooter because of its not achieving the assumed mileage in spite of several efforts to rectify the defects, the manufacturer would be liable to either replace the scooter by a new one or to refund the entire price of it.

FROM the materials on record we are satisfied that the complainant infact had to take the scooter to the garage for frequent defects in the vehicle and this must have been an irritating experience. On facts we hold that the particular vehicle purchased by the complainant was a defective one and the manner and the times it was attended to by the dealer opposite party No. 2 for rectifying the defects prove that there was some inherent defect in the vehicle for which gave low mileage which could not be rectified even to the last. M/s. Bajaj Auto have a reputation in the mercantile world for the quality of their various products including the scooter. We are of the view that such a big organisation should have, at least to maintain their goodwill in the business, immediately replaced the scooter on a request being made by the complainant. This would have been highly appreciable had they offered from their side to replace the scooter, instead of forcing the complainant to take shelter of this Court. We, therefore, have no hesitation to confirm the order of the District Forum but with modification. The complainant is dissatisfied with the direction of the District Forum that the opposite parties should replace another scooter free from any defect. This part of the order is confusing and we are of the view that it may give scope for further dispute in future. Once the complainant has been able to successfully prove his case there should have been specific direction either way, i.e. for replacement of the scooter with a new one or the price of the scooter with interest etc. Since the complainant is an Advocate and a scooter would be highly essential for his use, we feel it appropriate to direct both the opposite parties to be jointly and severally liable to replace the scooter by a new one of the same model as per the complainant''s choice on taking back the scooter from the complainant.

IN the result this appeal is dismissed. The judgment is confirmed but with modification. The opposite parties shall deliver the complainant a new Bajaj scooter of the same model or as per the choice of the complainant and in that case differential price if any between the two scooters will be paid by the complainant. We further direct that the opposite parties shall pay Rs. 3,000/- as compensation instead of Rs. 2,000/- awarded by the District Forum and also pay the cost of this litigation as awarded by the Forum below. The scooter shall be delivered within four weeks from the date of communication of this order. This disposes also the cross-objection of the complainant. Appeal dismissed.