NATIONAL GARAGE vs GIRWAR AGRAWAL

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 30.7.1999 in Complaint No. 150/98 by District Consumer Disputes Redressal Forum, Bilaspur (hereinafter called the ''District Forum'' for short) directing the appellant to pay to the complainant respondent a total amount of Rs. 20,056/- including cost of the repairs recovered from the complainant by the appellant as also damages, besides the cost of this complaint.

UNDISPUTED facts stated in brief are that the complainant/respondent herein purchased a Hero Honda Motorcycle from the appellant on 29.7.1997 after paying its price of Rs. 35,940/- as well as Road Tax, Insurance etc. The warranty of the said motorcycle was for a period of 6 months or 7500 kms., whichever is earlier, as would be indicated by the copy of the warranty marked as Exhibit N-2 by the District Forum. The complainant availed of 1st servicing of vehicle on 27.8.1997 and 2nd servicing on 6.10.1997. On both the occasions, he had made complaints regarding defects in the motorcycle as would be clear from the job cards. A letter dated 11.12.1997 was also written by the complainant to the appellant-dealers, that there was no improvement in the condition of the motorcycle, upon which the appellant had requested the complainant to bring the vehicle to their garage for check up and rectification of complaint therein. The complainant thereafter again produced the vehicle in the appellant''s garage on 2.1.1998. Third servicing of the vehicle was done on that date and it was returned to the complainant respondent on 6.1.1998. It appears that even thereafter the complainant was not satisfied and complained to the appellant about the defects in the motorcycle. However, it appears that the appellant did not attend to the defects. The complainant, filed complaint before the District Forum. He averred in the complaint that the warranty was for a period of one year and that the complainant was assured that any defects during the above period would be rectified by the appellant. However, the said motorcycle continued to give trouble despite services availed of by the complainant, as per stipulation between the parties. The complainant, therefore, prayed that he be given a new motorcycle or in the alternate to aver that during the pendency of the complaint, the appellant dealer had asked the complainant to bring the motorcycle for removal of the defects upon which the complainant had given his motorcycle in the appellant''s workshop. The said motorcycle was returned to the complainant on 23.9.1998, however, the respondent demanded Rs. 5,056/- towards the repair charges which according to the complainant, he was not liable to pay.

Complaint as above was resisted by the appellant. As per their written version the complaints of complainant/respondent were duly attended to during free servicing and there was no defect after 3rd servicing when the motorcycle was returned on 8.1.1998. Thus terms of warranty were duly complied with by the appellant, hence the complainant was not entitled to any relief.

THE learned District Forum in the impugned order observed that the defects in the motorcycle started immediately after the purchase thereof. It was also held by the District Forum that the appellant was liable to remove the defects which arose during the warranty period but, the appellant dealer has recovered from the complainant Rs. 5,056/- towards repair charges and has also delayed the repairs for about 8 months from 2.1.1998 to 23.9.1998, during which the complainant was deprived of the use of the vehicle purchased by him. Hence the appellant was directed to refund Rs. 5,056/- received from the complainant towards the repair charges. THE District Forum also directed the appellant to pay Rs. 5,056/- as compensation to the complainant on account of defective motorcycle having been sold to him, and Rs. 10,000/- as additional compensation, as the complainant could not use his motorcycle for a long period of eight months. Cost of Rs. 250/- was also directed to be paid to the complainant by the appellant. The learned Counsel for the appellant submited that the defects in the motorcycle as pointed out by the complainant were duly attended to, from time to time, and defects were removed at the time of free servicing of the vehicle. It was further submitted that the warranty was for only 6 months or for running of the motorcycle for 7500 kms., whichever was earlier. It was submitted that during the said warranty after 3rd servicing there was no defect in the vehicle. It was further submitted by the learned Counsel for the appellant that after the warranty had expired. The motorcycle was subsequently given to the appellant for repairs by the complainant during the pendency of the complaint. The vehicle was duly repaired by the appellant. However, the appellant dealer was entitled to recover the repair charges, after the expiry of the warranty. It was, therefore, submitted that the direction of the District Forum to refund repair charges and to pay compensation to the complainant respondent, were not justified.

THE learned Counsel for the respondent however, supported the impugned order. It was submitted that the motorcycle purchased by the complainant/respondent from the appellant, developed problems from the time of its purchase, and the same were pointed out by the complainant to the appellant. THE appellant however, did not satisfactorily attend to the said complaints. Since the motorcycle continued to give trouble, the complaint was lodged. During the pendency of the complaint, the appellant/dealer offered that the defects in motorcycle would be duly rectified by the appellant. THE complainant, therefore, gave the motorcycle to the appellant, which was duly repaired. However, the complainant has made to pay repair charges of Rs. 5,056/-. It was submitted that the said charges could not be recovered from the complainant, in view of the fact that the defects so rectified to by the appellant cropped up and persisted, since purchase of the motorcycle. It was, therefore, submitted that the District Forum was justified in ordering the refund of the amount of repair charges paid by the complainant/respondent to the appellant, and also in awarding damages. It is undisputed that the appellant had sold the motorcycle to the complainant respondent on 29.7.1997. Undisputably the motorcycle was produced for 1st servicing on 27.8.1997 as is also indicated by job card marked as Exhibit NA-1 by the District Forum. It would appear from the said job card that several complaints were raised by the complainant, at the time of 1st servicing as mentioned in the job card. Though the complaints as recorded in the job card are not legible, but it would appear therefrom that there was defect in the pick up and there was complaint of jamming of engine at the time of changing of gear to neutral. There was also defect in the back wheel. At the time of 2nd servicing which took place on 6.10.1997 as per the copy of job card produced in the District Forum, there was again some complaint including the complaint regarding the back wheel. At the time of 3rd servicing on 6.1.1998 again there was complaint regarding the back wheel, noise in engine and some other complaints possibly for heating of rear side etc. In view of the complaints recorded as above in job cards, it is clear that the vehicle, had from its inception, developed problems and continued to give trouble. Complaints of the complainant respondent were recorded in the job cards at the time of various servicing of the vehicle. The complainant has also averred by way of amendment that during the pendency of the complaint the complainant again handed over his vehicle to the appellant for repairs, on the offer of the appellant. However, the vehicle was only returned to him on 23.9.1998 after recovering from him Rs. 5,056/-. Copy of duplicate job card No. 2328 is on record which indicates that the vehicle was produced on 2.9.1998 for repairs and total amount of Rs. 5,106/- was paid on 23.9.1998, as would be clear from the endorsement on the back side of the said job card.

IN view of above, it is clear that during the pendency of the complaint also the defect in the motorcycle persisted and it was repaired by the appellant. However, an amount of Rs. 5,106/- was recovered towards repair charges. The respondent has not amended its written version. However, the workshop supervisor Praveer Gorha has submitted an affidavit dated 18.1.1999 in which it was stated that the vehicle was brought to their workshop on 2.9.1998 by one Sanjay Sonthaliya who had requested that there was a complaint of seizure of the engine and on his request that the said complaint be attended to, and that he would be paying the repair charges, the complaint as above was rectified and the vehicle was returned to Sanjay Sonthaliya after repairs.

IT may be noticed in the above context that affidavit of Sanjay Sonthaliya has not been filed in support of the above version. In fact it would be pertinent to note that the Manager of the appellant T.S. Chauhan had also filed his affidavit dated 6.11.1998 in which he did not mention anything regarding repairs of the vehicle as per job card dated 2.9.1998. If the averments of the complainant by way of amendment in the complaint were not true, the manager of the appellant could have rebutted the same in his affidavit dated 6.11.1998. But he has not done so. As noticed earlier, the affidavit of workshop supervisor Praveer Gorha thus remains uncorroborated and the new story set up by the said affidavit regarding the vehicle having been brought by one Sanjay Sonathaliya, and the same being repaired at his request, therefore, cannot be relied upon. In any case, it would appear even from the said affidavit of Praveer Gorha that the complaint and defect in the motorcycle was persisting from the inception, and it appears that the complaint was rectified on 2.9.1998, by the appellant during pendency of the complaint before the District Forum as has been averred by the complainant in the amendment to the complaint.

In the foregoing circumstances, it is clear that though warranty had expired on 2.9.1998 yet the complaint attended to had arisen from the time of purchase of vehicle. Hence, the appellant dealer was not justified in recovering the repair charges from the complainant. The complainant was, therefore, entitled to get the refund of the repair charges realised by the appellant. The finding of the learned District Forum in that regard appears to be justified and is affirmed.

IT may be noticed that the District Forum has not only directed refund of the amount of repair charges as above, but has also directed that the appellant shall pay the complainant Rs. 5,000/- as compensation for giving him a faulty motorcycle and Rs. 10,000/- as the complainant could not use the said vehicle for 8 months from 2.9.1998 to 23.9.1998, as would appear from the para 9 of the impugned order. However, it may be mentioned in the above context that the complainant himself has not averred in the complaint that he could not use the vehicle from 2.9.1998 to 23.9.1998, and in fact there is no allegation in the complaint that the complainant suffered any loss as he could not use the vehicle for the above period. Duplicate job card No. 002328 would indicate that the vehicle was produced for repairs on 2.9.1998 and was returned on 23.9.1998 as per endorsement made thereon. IT appears that the above time was required for repairs of the said motorcycle. IT cannot be said that there was such an abnormal delay in repairs for which the appellant dealer deserves to be penalized. As already noticed the complainant has not claimed damages on account of non user of the vehicle. In the complaint he only claimed Rs. 3,000/- for mental harassment. It is clear from the foregoing circumstances that the complainant has suffered inconvenience on account of defects in the motorcycle and had approached the appellant several times for the rectification of the defects in the motorcycle. The defects were ultimately removed by the appellant, during the pendency of the complaint. However, the appellant recovered the repair charges of Rs. 5,056/- from the complainant, which he ought not to have done. In the circumstances it appears just and proper to award Rs. 3,000/- to the complainant/respondent for the inconvenience and harassment as above caused to him.

ACCORDINGLY, this appeal is partly allowed and the impugned order stands modified in the following terms: ''The appellant shall pay to the complainant Rs. 5,056/- (Rupees five thousand fifty six) recovered as repair charges from the complainant/respondent and shall also pay him Rs. 3,000/- (Rupees three thousand) as compensation for harassment and inconvenience caused to the complainant. Interest @ 10% per annum from the date of complaint till payment shall also be payable by the appellant to the complainant on the aforesaid amount. Cost of this appeal quantified at Rs. 500/- shall also be payable by the appellant to the complainant/respondent. Appeal partly allowed.