Kinetic Engineering Ltd. vs UMA SHANKAR SAXENA

BEING dis-satisfied with the order dated 19.12.91 passed by the District Forum, Sawai Madhopur in Complaint Case No. 16/90/82/91, the opposite party has filed this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein). By the impugned order the opposite party was directed to replace moped Luna within two months from the date of the order or to pay Rs. 4,812.30 which were paid as price of the Luna by the complainant-respondent.

THE complainant-respondent purchsed one moped Luna from the authorised dealer M/s. Amit Enterprises, Sawai Madhopur for Rs. 4,812.30 on 11.12.1985. THE complainant informed the opposite party on 18.12.1985 that the performace of the moped Luna purchased by him is not satisfactory so it should be replaced. This letter was written on 18.12.85. THE opposite party is said to have informed by letter dated 23.1.86 that is has issued proper orders to its authorised dealer at Kota and that on account of some fault in tuning of the engine of moped Luna it cannot be replaced. THE complainant is said to have contacted the authorised dealer at Kota but the authorised dealer pleaded ignorance about such direction and the matter was avoided for 3 years. Ultimately the complainant was informed that the Luna can only be repaired after payment of repair charges. THE repair charges were paid to the authorised dealer at Kota but despite that moped Luna did not work properly. It is said that a fresh complaint was sent on 3.7.89 by the complainant and the opposite party by its letter dated 10.7.89 informed the complainant that he should contract the service enginer. THE Luna purchased by the complainant was shown to Mr. Dinesh Kumar and paid Rs. 294/-. Despite that the efficiency of the moped did not improve so as to give satisfactory service. Despite writing letters, no heed was paid. THE complaint was filed before the District Forum, Kota on 15.2.90.This complaint was subsequently transferred to the District Forum, Sawai Madhopur. THE relief claimed by the complainant is that a direction may be issued to the opposite party to replace the moped and to pay Rs. 20,000/- as compensation for supplying a defective moped. Before the District Forum appearance was put on behalf of the opposite party but no version of the case was filed and, therefore, right to file version of the case was closed. The complainant examined himself as a witness before the District Forum, Sawai Madhopur on 20.11.91 in support of the complaint. The opposite party did not produce any evidence. The District Forum heard the arguments on 13.12.91 and passed the impugned order as stated above. Against that the opposite party has filed the appeal.

Office reported that this appeal was presented two days after the expiry of the period of limitation. After perusing the application for condonation of delay, the appeal was registered subject to all just exceptions. Reply to the above appeal was submitted on 18.6.92. Besides that objections in writing were received from the respondent by office on 5.5.92 which are on record. On payment of costs, written arguments on behalf of the appellant were taken on record. Written arguments on behalf of the respondent were also received by post on 2.11.92. 5.We have carefully considered the reply to the appeal as well as objections and the written arguments of the parties. There is no dispute that the complainant purchased the moped Luna on 11.12.85 and soon after its purchase, it was found to be defective as its performance was not satisfactory and proper. In this connection, it ma y be mentioned that reply was sent by the opposite party-appellant to the complainant of the grievance made on 23.1.86. Thus the grievance of the complainant in regard to the moped Luna purchased by him was first made on 18.12.85 i.e. a week after the purchase and that was responded by opposite party. The complaint was sent regarding the Luna which was replied on 10.7.89 and the complaint as stated above was filed on 15.2.90. Therefore, the claim of the complainant in regard to the replacement of Luna which was purchased on 18.12.85 or for the refund of price on the date when the complaint was filed had already run out of time. 6. No version of the case was filed on behalf of the opposite party, specially raising the objections regarding limitation. However, as appears from the facts, the claim for the replacement of the Luna or for refund of its price had already become time barred when the complaint was filed. Reference in this connection may be made to 1991 CSMR CAS 255. The National Commission took notice that the machinery was installed in August, 84 and the defects were noticed in December, 84 and so the complaint which was filed in February, 90 was barred by limitation. The decision rendered by the National Commission in 1991 CSMR CAS 255 is nearer one. In this case Luna purchased on 11.12.85. Its performance was found not satisfactory and proper on 18.12.85 and the complaint was filed on 15.2.90. In 1991 (II) CPR 355 the same view was taken after stating the proposition that the general law of limitation is applicable to the complaints filed before the Redressal Forums under the Act. In that case xerox machine was purchased in August, 1980. It was found to be defective within three or four days of the date of purchase and the complaint was filed in November, 90. It was held that it was barred by limitation. The matter can be viewed from another angle and that is this that after the purchase of Luna when the performance was not found to be satisfactory and the defects were noticed as early as on 18.12.85, it was open to the complainant-respondent to rescind the contract of purchase and resort to Section 12 of the Sale of Goods Act which he failed to do and even from that point of view the claim for refund of price for supplying defective goods, the complainants filed on 15.2.90 had run out of time. The position comes to this that the claim for the replacement or refund of price of the Luna which was purchased on 11.12.85, the regarding which the defects were noticed on 18.12.85, the complaint as filed on 15.12.90 was barred by limitation. This view has been taken by the National Commission in various cases as well as by the State Commission and the authorities need not be mentioned. Apart from that, the District Forum has mentioned in the order under appeal that there was some fundamental defect in the moped Luna about which the complainant-respondent has written to the opposite party several times but the defects were not rectified which it should have done. A perusal of the complaint shows that in para 2, the complaint, it was stated that its performance was not satisfactory and proper. What were the defects and whether the defects were manufacturing defects or not that has not been stated in the complaint, barring aside the statement that several letters were written. On record the complainant has placed the letter dated 10.7.89 of the opposite party which was in reply to the letter dated 3.7.89 of the complaint, which merely says that the matter is being taken up with M/s. Prakash Enterprises, Kota as well as servive engineer is being deputed to inspect the vehicle and to take necessary action. There is another letter of 8.8.89 of the opposite party informing the complainant to show the moped Luna on 11.8.89 to the Service Engineer at Prakash Enterprises, 19, Jhalawar Road, Kota. The moped was repaired as appears from the letter dated 22.9.89 at Kota on 15.8.89 and the grievance made by the complainant that there is some major defect (manufacturing) since beginning which could not be traced during quality control trials and that he was not satisfied with the service rendered by the reputed company. We gather from the statement of the complainant that the warranty period was six months or 4000 k.m. whichever may expire first. The complainant has also admitted in his deposition before the District Forum that moped Luna was with him and he has been using it but he has qualified the words by staring "Rote Parte Maine Kaam Main liya". 7. The District Forum neither applied its mind to the question of limitation in presenting the complaint nor to the warranty period. It also did not take into consideration the fact that the complainant-respondent has been using the moped Luna since its purchase. The order for replacement of the vehicle could only be passed if categorically finding was recorded with regard to the manufacturing defect which is lacking in this case. The District Forum has rest contended by merely stating that the service engineer and the authorised dealer could not find out the defect and as the defect was not found out as per the finding of the District Forum and so there is fundamental defect which is entirely a wrong approach made by the District Forum. Neither the complainant has come with the case whether there was manufacturing defect in the vehicle nor the District Forum on the basis of any material on record came to the conclusion that the moped Luna purchased by the complainant had some manufacturing defect and, therefore, no direction for replacement of the vehicle could be given nor a refund of price could be ordered. 8. Mr Uma Shankar Saxena (respondent) in person stated that moped Luna purchased by him on 11.12.85 had some engine defects and besides defects other than the engine defects he has not specified them. We hope and trust that the opposite party-appellant will rectify the engine defects so as to put the moped Luna in a running condition. After consulting the learned Counsel appearing for the appellant and the respondent in person it is ordered that the respondent will hand over the moped Luna within one week from today at M/s. Swastik Agencies, Kota for rectifying the engine defects only and the opposite party-appellant after rectifying the defects and putting it in a running condition so far as engine is concerned deliver it back to the complainant-respondent within 15 days from the date of the delivery of the Luna of him for which the complainant-respondent will not be required to pay anything to the opposite party-appellant. The amount deposited by the opposite party-appellant being the cost of moped Luna amounting to Rs. 4,812.30 with the District Forum, Sawai Madhopur shall be refunded to the opposite party-appellant against receipt. 9. Subject to the observations made hereinabove, the appeal succeeds and the order dated 19.12.91 passed, by the District Forum, Sawai Madopur in Complaint Case-No.160/90/82/91 is set aside. In the circumstances of the case the parties are left to bear their own costs of this appeal. Order set aside.