L.M.L.LIMITED vs B.P.TYAGI

BRIEFLY stated, the material facts of the case are that Mr. B.P. Tyagi, complainant, purchased a Scooter Model Select from M/s. Mangalam Agencies, Authorised Dealer of M/s. L.M.L. Ltd. on 9.11.1993 in the name of his wife Mrs. Kamal Tyagi. The Scooter started giving trouble on the third day of its purchase. The complainant took the scooter to the dealer on a number of occasions but the main problem of slipping of second and third/4th gear was not rectified. Even when it was rectified, the rectification was temporary and the problem appeared again after the scooter had been used for a brief period of 2 / 3 days. The complainant approached District Forum by filing a complaint dated 8.2.1994. The opposite parties failed to appear. The District Forum took into consideration the complainant''s affidavit which had not been controverted and held that the vehicle suffered from manufacturing defect and directed the opposite parties to replace the scooter with a new one free from defects and in the alternative, to refund the price of the scooter paid by the complainant together with 18% interest thereon from the date of purchase till payment besides Rs. 5,000/- as compensation.

AGGRIEVED by the order, the opposite parties have preferred this appeal. The plea of the appellants is that the complainant as distinguished from the purchaser of the scooter, namely Smt. Kamal Tyagi, has no locus standi to file the complaint. It has further been stated that every time the scooter was brought to the dealer''s workshop, it was attended to and necessary adjustments made and the complainant was completely satisfied. On receipt of a copy of the complaint dated 20th January, 1994, instituted before the District Forum, the manufacturer M/s. L.M.L. Ltd. sent its service engineer to the residence of the complainant, but the complainant was not available. The service engineer again went to his house on 3.2.1994 but the complainant refused to allow the engineer to attend to the scooter. This was followed by two engineers sent by the manufacturer to the house of the complainant on 19.2.1994, who after briefly inspecting the scooter, requested the complainant to hand over the scooter to them for rectification of the defect with an undertaking to deliver the scooter duly set-right in terms of the warranty at his residence. The complainant, however, refused to hand over the scooter to the said engineers. Further case of the appellants is that in order to bring undue pressure to bear on the opposite parties, the complainant got published a letter to the Editor in the daily Statesman dated 21.3.1994 which was duly replied by the Co-ordinator Customers satisfaction by his letter dated 26.4.1994. The appellants also placed on records in the form of a chart the various complaints experienced by the complainant in the working of the scooter from time to time and action taken thereon as per Job Cards maintained by the opposite party. In short, the stand was that the scooter had been attended to every time a complaint was reported. After filing of the complaint, however the complainant refused to co-operate even though a number of engineers were sent to his residence to attend to the scooter. Further case of the appellants is that the District Forum issued Notices to the opposite parties, appellants herein, for 7.7.1994. On that date a representative of the appellant Company appeared before the Forum and was allowed to file the written version by 22nd September, 1994. On the said date, the appellant''s representative sought further time to file a detailed affidavit and the said prayer was refused by the District Forum. Subsequently before the final order was passed, a detailed affidavit, controverting main allegations and setting forth the opposite parties'' case in the form of affidavit (Copy Annexure-E) was filed on 29.9.1994. The contention is that the District Forum failed to take notice of the contents of the said affidavit. Further plea of the appellants is that the complainant had approached MRTP Commission, New Delhi, and he could not avail of the remedy, if any, under the Consumer Protection Act.

In the detailed reply filed by the respondents, it was stated that no engineers of the manufacturer had contacted him at his residence and when he had paid nearly 20 visits to the dealers as well as manufacturer, it was unthinkable that he would not co-operate with the opposite parties'' engineer in order to get his scooter set-right. In para-11 of the reply, the respondent highlighted the conduct adopted by the opposite parties which showed scant respect for the District Forum as well as to the legitimate claims of the complainant. It was denied that any affidavit was filed on behalf of the opposite parties on 29.9.1994 though he admitted having received a copy of one such affidavit by Registered A.D. Post. He further stated that he does not want a replacement of the scooter as he had suffered enough and had gone in for another vehicle.

WE have heard Mr. Nalin Talwar, Advocate for the appellants and Mr. B.P. Tyagi, respondent in person and have gone through the records. The first objection raised by the respondent is that the appeal is time barred. The order of the District Forum-II is dated 19.12.1994. According to the appellants certified copy was received on 7.1.1995 and the present appeal filed on 3.2.1995. In the absence of any material having been placed on record to prove that the appellants received certified copy of the order before the date admitted by them, it must be held that the appeal was filed within 30 days of the receipt of a certified copy. The law in this respect stands settled by decision of Supreme Court in Haryana Housing Board v. HB Colony Welfare Association & Others, III (1995) CPJ 28 (SC).

THIS brings us to a consideration of the plea of the appellants that the complaint was not maintainable as the complainant had approached MRTP Commission by filing a complaint dated 2.2.1994 i.e. before filing the complaint before the District Forum. Notice received by Mangalam Agencies from MRTP Commission has been filed as Annexure-B with the grounds of the appeal. The dealer appears to have filed reply dated 30th March, 1994. There is nothing to show that the complainant pursued the matter in MRTP Commission or that any final order one way or the other was passed by that Commission. Within one week of filing the complaint before the MRTP Commission, the complainant approached District Forum and no final order which might have been passed by the MRTP Commission has been brought to our notice; in these circumstances, we do not think that the complainant can be nonsuited. With regard to locus standi of the complainant it is sufficient to point out that the scooter was purchased by Mr. B.P. Tyagi though in the name of his wife. It was he who was using the scooter and was dealing with the opposite parties. In the facts and circumstances of the case, the complainant must be held to be duly authorised agent having impleaded authority from his wife to institute and pursue this case before the FORA. Reference in this connection may be made to Sai Medical Stores v. R.D. Gupta, II (1992) CPJ 515 (M.P. State Commission). Coming to the merits of the case, the complainant placed on record a detailed statement giving the date of each visit and the action taken by the dealer. The said statement may be seen at page 5 of the Annexures filed with the reply in the appeal. A careful perusal of the same is sufficient to show that the opposite party failed to attend to the genuine grievances of the complainant and he was made to visit the dealer''s workshop again and again and waste considerable time. The said statement also renders it highly improbable that the manufacturer sent its service engineer to the complainant''s residence on 6.2.1994 and again on 13.2.1994 followed by two other engineers on 19.2.1994. Not only that the complainant was made to go to the dealer''s workshop again and again and the problem given by the defective gear box was not rectified, the opposite parties showed little regard to the proceedings initiated before the District Forum even though admittedly they received notices about the same. Against this background, it is highly improbable that suddenly the opposite parties underwent a metamorphosis and started sending its engineers to the residence of the complainant with a promise to remove the defects and deliver the scooter duly repaired in terms of the warranty at his residence. A perusal of the chart prepared by the appellants filed as Annexure-D with the appeal itself shows that the problem of slippage of the gear was repeatedly brought to their notice and inspite of several visits, the problem was not rectified. This is not, therefore, a case in which the complainant may have ignored the offer of the opposite party to remove the defects in terms of the warranty. The facts on the other hand, established that the opposite parties failed to rectify the two main defects, namely, the slippage of the gears and two as against the claim of 70 kms. per litre, the scooter in question was giving only 25 kms. per litre. This is also not a case in which the faults pointed out by the complainant might have been found imaginary or exaggerated. The Job Cards, corroborate the complainants aforesaid defects experienced by him.

THE complainant is not interested in having a replacement. THE alternative relief granted by the District Forum calls for no interference except with the modification that at the time of receipt of the payment the complainant would surrender the scooter purchased by Mr. Tyagi and execute necessary documents of the scooter in favour of the manufacturer or its dealer. THE amount shall be paid by the manufacturer, L.M.L. Ltd. to the extent of 2/3rd and the dealer to the extent of 1 /3rd. We find no merit in the appeal and the same is accordingly dismissed with no order as to costs in the appeal. Copy of the order be conveyed to the parties as well as District Forum-II. Appeal dismissed.