K.C. SAINI vs PRADEEP KUMAR KANKANE

BOTH these appeals arise from the order dated 7.4.2006 in complaint No. 346/98 by the District Consumer Disputes Redressal Forum, Durg (hereinafter called the ''District Forum'' for short) directing the OPs (respondent in Appeal No. 165/06) to pay the difference price of 3-wheeler vehicle Sitara 400 Auto Rikshaw of 8 HP and that of Sitara 6.5 HP. Besides, it was directed that the OPs would pay to the complainant, compensation of Rs. 23,261 as well as cost of Rs. 500. Since, both these appeals arise from the same order, they are being disposed of by this common order.

IT is not in dispute that a three-wheeler Auto Rikshaw, Sitara 400 is manufactured by Suraj Automobiles Ltd., OP No. 1. OP Nos. 2 and 3 (respondents in Appeal No. 165/06) are the dealers of the said vehicle. The averments of the complainant stated in brief are that the OPs/respondent Nos. 2 and 3, represented that the engine of the said vehicle was of 8.5 HP and its loading capacity is of 1000 kgs. However, in fact, engine of the said vehicle was of 7 HP and its loading capacity was only 700 kgs. It was further averred that the said vehicle developed defects soon after the purchase and the complainant was required to incur expenses in getting it repaired, from time-to-time. The complainant therefore claimed that total compensation of Rs. 56,915 with interest be awarded.

The complaint was resisted by the OPs/respondents (in appeal No. 165/06). Respondent No. 1/manufacturer averred that the HP of the engine of the vehicle sold to the complainant was 8.5 HP. It was also averred that there was no manufacturing defect in the vehicle.

RESPONDENT Nos. 2 and 3 also resisted the complaint and averred that they are not liable for the manufacturing defects in the vehicle. It was also averred that the complainant misused the vehicle and did not adhere to the warranty schedule of free servicing. The District Forum in the impugned order held that the vehicle was of 7 HP while it was represented to be of 8.5 HP. It was also held that it could not carry weight of 1000 kgs. It was thus held that the respondents/OPs adopted unfair trade practice in supplying the vehicle, as above. It was further held that the complainant had to incur expenditure of Rs. 13,261 in the repairs of the said vehicle, which the respondents are liable to reimburse to him. District Forum further awarded compensation of Rs. 10,000 towards harassment and mental torture to the complainant.

IN appeal No. 165/06, the complainant prayed for enhancement of the amount of compensation while the dealers- appellants in Appeal No. 168/06 prayed that the impugned order be set aside and the complaint, as against them, be dismissed. Learned Counsel for the parties were heard. Record perused. It is now not in dispute that the OP Nos. 2 and 3 dealers had represented to the complainant that engine of the Sitara Auto Rikshaw vehicle is of 8.5 HP. In fact, the OP No. 1 manufacturer in its written version averred that the vehicle sold to the complainant was having 8.5 HP engine. They have tried to justify the stand as above by stating that the HP depends on many factors such as rotation per minute of engine, Road condition, driving standards, maintenance, engine oil used, and proper check-up and servicing of the vehicle from time-to-time. OP Nos. 2 and 3 dealers (appellants in Appeal No. 168/06) averred that the manufacturing company had determined the HP at 8.5 HP and that they are not liable for any misrepresentation in that regard, as they are not manufacturers.

IT may be noticed in the above context that admittedly the complainant purchased Sitara 400 Auto Rikshaw. The brochure (Annexure 1) issued by the manufacturer, Suraj Automobiles clearly specifies the output thereof at 8.5 HP. However, it appears that the said vehicle was of lesser HP and its HP was only 7 as would be clear from the photographs of the plate containing the specifications of the engine, affixed in the engine of the vehicle. IT also appears that the OP in the memo of appeal filed earlier, specifically admitted that the engine was only of 7 HP. Therefore, it is clear that the vehicle supplied to the complainant was having 7 HP engine, instead of 8.5 HP; as was represented to him by the respondents.

IT may further be noticed in the above context that the dealers cannot be absolved from the liability of supplying a vehicle which was not of requisite specifications i.e. having 8.5 HP engine; simply by saying that the vehicle is supplied to them by the manufacturer and that they are not responsible for any shortcomings thereof. The complainant had dealings with the dealers directly. IT is therefore clear that dealer must have represented to him the capacity of engine of the said vehicle. It may further be noticed in the above context that the dealer has not placed any material on record to show that they were simply the agents of the manufacturers. In fact, the terms of agency have not been placed on record and possibly the dealers were acting on principal to principal relationship with the manufacturers. It may be noticed in the above context that the manufacturer in its pleading has averred that the appellants dealers (in appeal No. 168/06) were purchasing the chassis from them and, thereafter they prepared the body and sold it to various customers. Thus, the dealer-appellants in appeal No. 168/06 cannot avoid their liability; in supplying a vehicle with engine of lesser capacity than was represented to the complainant.

District Forum therefore, was justified in holding that the respondents are liable for the shortcomings and the engine of the vehicle being not as per the specification represented to the complainant. Such misrepresentation would amount to unfair trade practice and all the OPs including the dealer-appellants (in Appeal No. 168/06) therefore would be liable to pay compensation.

CONSIDERING the fact that the vehicle was having engine of 7HP instead of 8.5 HP engine and considering the fact that consequently it must have lesser loading capacity also, as has been alleged by the complainant, it appears just and proper to award Rs. 35,000 as compensation. Accordingly, appeal No. 165/06 is partly allowed and it is directed that the respondents of the said appeal No. 165/06 shall jointly and severally pay to the complainant/appellant Rs. 35,000 ( Rupees thirty-five thousand) only as compensation. It is directed that the amount as above, shall be paid/deposited within 2 months, failing which interest thereon at the rate of 9% p.a. from the date of deposit, shall also be liable to be paid by the OPs. They shall also pay jointly and severally to the complainant/appellant cost of this litigation including that of the complaint as well as of this appeal, which is quantified at Rs. 3,000 (Rupees three thousand) only. The Appeal No. 168/06 by dealers Dr. K.C. Saini and Karam Son Automobiles consequently stands dismissed. Appeal No. 165/06 partly allowed. Appeal No. 168/06 dismissed.