Hindustan Motors Ltd. vs G.P.SRIVASTAVA

THE Miscellaneous Petition No. 143 of 2001 is filed by the respondent, G.P. Srivastava, aggrieved by the ex parte order passed by the National Commission in Miscellaneous Petition Nos. 295 and 296 of 2000 for condonation of delay and stay in First Appeal No. 290 of 2000 by the appellant, M/s. Hindustan Motors Ltd. THE direction given on 25.1.2001 in the said interim order of the National Commission is as follows : "THE delay of 42 days in filing the appeal is condoned. Issue notice to the respondent on the point of compensation. THE direction to pay compensation is stayed till disposal of this appeal."

THE respondent aggrieved by this ex parte interim order, approached. Hon''ble Supreme Court by way of Special Leave Petition Nos. 6343-6344 of 2001 on condonation of delay of 42 days and stay which were granted by the National Commission without notice to the respondent Hon''ble Supreme Court dismissed the said S.L.P. on 8th May, 2001 on the prayer for interim relief and the said order is as follows : "Shri G.P. Shrivastava - petitioner is present in Court. We have heard him. His objection appears against the ex parte order condoning the delay by the National Commission. It is our view that at this stage no interference with the order is warranted. It is open to the petitioner to approach the National Commission for appropriate order, Special Leave Petitions are dismissed."

With the above background, we proceeded to hear the miscellaneous application No. 143 of 2001 on cause and explanation for the condonation of delay of 42 days in the application on notice to both the parties and also heard the First Appeal No. 290 of 2000.

Appellant''s Counsel stated on affidavit that the certified copy of the order of the State Commission although was passed on 6th July, 2000 was received by them only on 30th August, 2000. The appellant, thereafter, engaged the present Advocate on 10th January, 2000 to represent his case. It is their case that the present Advocate had to retrieve all the necessary and relevant documents which are more than 5 years old from the lawyers who represented them in State Commission. The Appeal No. 290 of 2000 and the Miscellaneous Petition Nos. 295 of 2000 and 296 of 2000 were filed on 17th November, 2000. In this process, the delay came to be 42 days.

THE respondent vehemently opposed the application for condonation of delay of 42 days in filing the appeal, contending that the appellant, Hindustan Motors having large network of offices, branches and dealers all over the country and being a big business house, having complete knowledge of the provisions for right of appeal under Consumer Protection Act, cannot take grounds of delay such as engaging new lawyer who need to get records from the earlier lawyers. We have examined the applications for condonation of delay and stay filed by the appellants and heard arguments from both the parties. Since the respondent was not noticed for the same on 25th February, 2001 which was not noticed by oversight of the National Commission, now after hearing both the sides, we find there is no merit in the grounds taken by the appellant to condone the delay of 42 days. We are unable to appreciate that the appellants of high stature and knowledge of Consumer Protection Act taking mundane plea that they could not get the records in time and they did not justify with a reasonable explanation for the said delay we are not condoning the delay of 42 days by the applicant and, therefore, the appeal is not maintainable. However, in the interests of justice and since Honourable Supreme Court left all the options for us to decide the case, we also heard the parties on merit.

THE brief facts of the case are : Admittedly, the respondent purchased a Contessa, a classic car on 7th October, 1991 and after 7 days, i.e. on 14th October, 1991 itself he communicated to the appellant the following defects and contended they were manufacturing defects : (i) Front left door does not open from inside. (ii) Fuel gauge not working. (iii) Speedometer needle shakes (Magnet to be replaced) (iv) Rear Shock Absorber to be checked since there is big notice over bumps and loading luggage. Even then starting in first gear. (v) Left front door lining has rusted. (vi) Gear lever is not smooth, has to be lubricated and adjusted. (vii) R/L indicator does not switch off on turning. (viii) Panel under handbrake does not open.

The respondent prayed for compensation of Rs. 5,21,242/- and exemplary damages and Rs. 3,100/- for legal charges or for replacement of the car with warranty and an amount of Rs. 2,19,010/- on account of interest claiming it is manufacturing defect and deficiency in service by the appellants. He also claimed 13% of the price of the car on account of business losses, inconvenience, mental torture, agony and compulsive use of taxi when the car in question remained off the road. State Commission went into merits and returned the finding that "On the basis of material on record" it is apparent that the car in question had no manufacturing defects and no major defect has been proved by the complainant either in the engine or in any of the vital parts of the car in question. In the presence of the above facts, in our opinion, the complainant is not entitled to replacement of his car with a brand new car at the cost of the O.Ps. The above said relief is, therefore, also declined. But it observed that "moreover, even otherwise also, for keeping the car in a usable condition, the owner is expected to incur some expenses. At the same time, it is a fact that the car in question had some defects and there was deficiency in service on the part of the O.Ps. and the complainant, therefore, had to incur some avoidable expenditure for keeping the car in a usable condition. In view of the above facts, in our opinion, the ends of justice would be met, if we allow 50% of the above amount, which comes to Rs. 38,118.24". They further awarded a sum of Rs. 25,000/- on a suitable compensation for loss of time, harassment and mental torture and anguish etc., caused to him, due to the defects in the car and deficiency in service on the part of the appellants. The order dated 6th July, 2000, the State Commission directed appellants- (a) that opposite party Nos. 1 and 2, within 60 days from the date of this order, shall ensure that necessary repairs in the car in question are carried out at the nearest authorised service station of the opposite party No. 1, to the place or residence of the complainant, free of cost;

(b) that the opposite party shall pay to the complainant a sum of Rs. 63,118.24 within 60 days from the date of the communication of this order to them, failing which the same shall carry interest at the rate of 12% p.a. till actual payment. The liability of the opposite parties insofar as the payment of the above amount is concerned shall be joint and several; and (c) that in case the opposite parties fail to comply with the above directions/orders within 60 days, from the date of receipt of this order, the complainant shall be at the liberty to file an application under Section 27 of the Act."

When the respondent on 20th February, 1998, moved the State Commission under Sections 25 and 27 of the Consumer Protection Act, within the prescribed limitation for non-compliance of the order within 60 days, it is then they came to know that the appellants had already taken a stay order from the National Commission behind their back. Therefore, they moved Hon''ble Supreme Court for directions and the case is argued with us in this background.

APPELLANT vehemently opposed the order contending that they had repaired and replaced parts as and when needed during the one year warranty period to the customers satisfication. They submitted that the respondent levelled baseless allegations against them that the accident of the said car was caused due to inherent manufacturing defects, in the propeller, shaft assembly etc. Contending that the car was driven more than 26,000 kms. and that the accident is not covered under the warranty and that the said accident occurred due to improper and excessive driving and poor, irregular maintenance on the part of the respondent, appellants prayed to set aside the order of the State Commission and allow their appeal.

WE considered the case on merits and find the order passed by the State Commission in the circumstances of the case is a well-reasoned and justified one. There is no legal infirmity in the said order and appellants have not brought up anything new in the appeal to reconsider a new issue that is otherwise ignored. With these observations, we pass the following order : WE dismiss the Miscellaneous Petition No. 143 of 2001 and First Appeal No. 290 of 2000. WE affirm the order of the State Commission. No order as to costs. Appeal dismissed.