Hindusthan Motors Ltd. vs PRASENJIT CHAKRABORTY

HEARD learned Counsel for the parties including the performa respondent who has been transposed in the category of appellant No. 2. The appellants challenged the order of the Forum directing the opposite parties who are the dealer and manufacturer of the vehicle in question to replace the existing engine of the vehicle by a new one within two months from the date of placing the vehicle before them at the cost of the complainant. The learned Counsel for the appellants seek to distinguish between "Consumer of goods" and "hirer of service" to strengthen their argument that the Forum was wrong in directing return of the engine of the vehicle. According to them the complainant cannot be regarded as a consumer of goods. But at best he can be regarded as the hirer of services of the opposite parties. They submit further that at best the Forum could, upon finding of deficiency in service on the part of the opposite parties direct payment of compensation. The learned Counsel for the respondents, however supports the judgment and submits that there is nothing wrong in the order of the Forum which can be assailed here.

IN this connection it would be relevant to refer to certain admitted facts. The complainant purchased the vehicle from opposite party-2 on 2.8.1996 and opposite party-1 is the manufacturer of the said vehicle. There was a warranty for the vehicle for a period of 12 months or 16,000 kms. whichever occurs earlier. According to the complainant, the engine developed trouble within the period of two weeks from the date of purchase and it was sent to the workshop of opposite party-2 for repair. The repair haying yielded no result the complainant approached the Forum and the first order was recorded by the Forum on 21.11.1996. IN the complaint petition the complainant claimed compensation of Rs. 94,000/- for the engine and Rs. 50,000/- for business loss and a further sum of Rs. 50,000/- for mental agony. IN the alternative the complainant prayed for a direction upon the opposite parties for replacement of the machine by a new one. It appears that after the passage of the case for several years the Forum by order dated 17.2.1999 directed the opposite parties to replace the machine by a new one. During the carriage of the proceeding before the Forum there was a prayer for appointment of an expert to know whether there existed any defect in the machine or not and the Forum in the presence of both sides and upon hearing the passed order on 16.11.1998 appointed M.V. INspector attached to M.V. Department at Siliguri to thoroughly examine the machine and to submit report on several points touching the defective nature or otherwise of the engine. It was specifically directed to notice whether the defect is repairable or the engine has manufacturing defect. After several adjournments and reminders the MV INspector submitted the report to the Forum. Learned Counsels appearing for the parties could not enlighten the Commission as to at whose instance the M.V. INspector was appointed. Anyway, the report of the MV INspector was available when the impugned order was passed, learned Counsel appearing for appellant-1 submits that they had not been given any opportunity to be present during the inspection of the vehicle by the said INspector. He submits also that the Motor Vehicle INspector is not qualified to undertake the job. According to him the Automobile Association of Eastern INdia alone is competent to report in this matter. Learned Counsel for the respondent submits that the objection with regard to the appointment of the MV INspector and the findings arrived at by the said INspector have not been challenged before the Forum. The appellants have challenged the same before this Commission. According to him it to too late in the day to raise such objection for the first time in appeal. He submits that enough opportunities were available to the opposite parties to challenge the competency of the MV INspector as also the correctness of the report. Learned Counsel for the appellants submits that an opportunity should be given to them to controvert the report of the M.V. INspector by remitting the case back on remand to the Forum. This is, however, seriously opposed by the learned Counsel for the respondent. Nevertheless the fact remains that parties had ample opportunity to go through the report of the INspector and to challenge his findings before the Forum. IN this connection, it is worthwhile to observe that Motor Vehicle INspectors are officers of the Government having some technical background. Anyway this being the position we are not in a position to allow the prayer of the appellants for setting aside the judgment and sending the case back on remand to the Forum for fresh decision. It is noticed that ever since the vehicle was purchased, It developed defect. Time and again, the complainant took the vehicle to the Garage of the opposite party-1 for repair. It cannot be said that the complainant ran to the workshop of the opposite party-2 for nothing. The warranty period was not over when the first approach was made. Therefore, in our view the opposite parties are jointly and severally liable to replace the machine or to pay compensation worth Rs. 94,000/- as claimed in the complaint petition.

Since there was deficiency in service we pass an order for a sum of Rs. 94,000/- as compensation to be paid by the opposite parties. The sum of Rs. 94,000/- would carry interest @ 10% from the date of filing of this case, i.e. 21.11.1996 till date of payment.

WITH this observation, the appeal be disposed of and the appellants are required to pay the amount within three months from the date, failing which the complainant will be at liberty to realise the amount by way of execution. Appeal disposed of.