JEROME MOUTHAPPA vs SENIOR SERVICE MANAGER

THE complainant appeals. He purchased an Enfield Bullet Machismo from the second opposite party on 7.6.1996. THE motor cycle developed problems after problems which were attended to be the opposite parties. THE complainant has lost confidence on the roadworthiness of the vehicle and accordingly approached the District Forum with the following prayers: (1) directing the opposite parties 1 and 2 to deliver a new vehicle Enfield Bullet Machismo in lieu of the manufactural defective vehicle delivered to the complainant bearing Reg. No. PY-01 F 8373 since all problems occurred during the warranty period of guarantee or in the alternative directing the opposite parties to refund the amount paid on the complainant towards price of the bullet with interest at 12% p.a. from the date of payment till realisation; (2) to award compensation for a sum of Rs. 25,000/- towards mental agony and incidental costs; (3) to award cost of this petition;

THE case of the opposite parties was that they have changed parts of the vehicle which were found to be defective, that the vehicle was in perfect condition, and that the complainant did not come and take delivery of the vehicle. The District Forum after hearing the parties has passed an elaborate order in which it found that even though the vehicle developed some troubles, the opposite parties have come forward to set right the defects changing whenever necessary the parts which were found to be defective. It also noted that on the last occasion the opposite parties requested the complainant to be present when the repairs were attended to. The complainant did not respond to that appeal. Then the opposite parties have sent a telegram after 22nd March, 1997 requesting the complainant to come and take delivery of the vehicle which was ready after repair.

The District Forum has also considered a series of judgments relied upon by the complainant, found that these judgments were specific to the facts of each case and had no bearing on the case in hand.

AFTER considering at length all the defects noticed and also all the repairs which have been affected the District Forum found that this was not a fit case to order either replacement of the vehicle or return of the price and accordingly passed the following order : "the complainant shall take delivery of the vehicle from the second opposite party and the first opposite party shall extend the warranty period for 6 more months from the date of delivery of the vehicle. If any defects are found by the complainant, he shall report the same to the Second opposite party who shall rectify the same with the assistance of the first opposite party."

Non satisfied by the order the complainant would pray for an order as prayed for. From the rival contentions of the parties, the point to be answered is whether this is a fit case for ordering delivery of a new vehicle or refund of sale price.

THE first plea raised by the learned Counsel for the Appellant is that there was no denial in manufacturing defect by the opposite parties. THE learned Counsel for the opposite parties would point out that such denial is very much present in para 5 of the counter. THE question is not whether there is any manufacturing defect or not, because the fact that some of the parts have to be changed during the warranty period shows that there were some defects. THE question is rather whether the defects and the circumstances are such as to justify replacement of the vehicle or return of price. For a person to ask for the replacement of goods or return of the price he should at the very first instance or at least before any major repair is effected ask for such replacement or return of the price. In this case he has not done so. He instead requested the opposite parties to rectify the defects and if not possible to replace the vehicle. Accordingly the vehicle was repaired thrice and with change of parts whenever necessary. Further on the last occasion the vehicle was sent for repair and the same was effected and the vehicle kept ready. The complainant did not go and inspect the vehicle to take delivery thereof. He instead approached the District Forum. After some parts of the vehicle have been changed at the request of the complainant he cannot thereafter ask for replacement or for the return of the price without testing the vehicle. It is to be noted here that when the complainant sent the vehicle for repair lastly the warranty period was over and inspite of that the repairs were made without any cost. The learned Counsel for the appellant has also brought to our notice the judgment of the Supreme Court in Tata Engineering and Locomotive Co. Ltd. & Anr. v. Gajanan Y. Mandrekar, reported in II (1997) CLT 492 (SC)=Supreme Appeals Reporter-August, 1997 in page 657. The ratio decidendi of the decision is that when the consumer has been using the vehicle with the defects as pointed out, while awarding compensation to the consumer the deduction towards the use of the vehicle will have to be made. This ruling is against the interest of the complainant, it would help rather the opposite party in case any compensation is awarded to the complainant. Since in this case no compensation is awarded to the complainant, this decision has no relevancy in this case.

TO sum up the complainant did not straightaway ask for the replacement of the vehicle pointing out a major defect, the vehicle was repaired thrice at his request, on the last occasion after sending the vehicle for repair, he did not test whether the vehicle was made roadworthy, he has used the vehicle for a period longer than the warranty period, under these circumstances, the prayer for replacement of goods or return of the price is not justified and the District Forum was right in rejecting it.

THE second contention is that the District Forum has come to the conclusion that the trouble may be due to the nature and manner of driving the vehicle and that such plea was not taken by the opposite party. We did not see any merit in this contention. It is true that the District Forum in the course of the order observed that the trouble might also be due to the way in which the vehicle was handled, but it has not given a finding to that effect nor ordered the dismissal of the complaint thereon. THErefore that observation has to be ignored. The third contention is that the opposite parties have not set right the vehicle in the shortest possible time, that they have not replied to his letters and that he is thus deprived of the use of the new vehicle which he purchased for performing his daily routine duty. This contention has not been raised before the District Forum. On the basis of these facts the complainant may be entitled to a compensation for deficiency in service in the course of the repair of the vehicle if the repairs were not made with diligence. Since there is no demand on that ground in the complaint we cannot consider the matter in the appeal.

In the result, the appeal is dismissed with cost of Rs. 500/-. Appeal dismissed with costs.