OLAVO PEREIRA vs JAYA AUTOMOBILES PVT. LTD.

THIS appeal is challenging the order of the District Forum, North Goa, dated 17th May, 1999, in Complaint No. 164/95. By the aforesaid order the learned Forum has dismissed the appellant''s complaint seeking for a direction to the respondent to pay to him an amount of Rs. 65,000/- towards the price of a defective engine supplied by the respondents and installed in the complainant''s Taxi bearing registration No. GDV-2023, besides various other heads of compensation as enumerated in the prayer clause of his complaint.

IT was the appellant''s case before the District Forum that, upon payment of the agreed amount towards the cost of a diesel engine to be fitted in his taxi, the respondents failed to deliver the car within 15 days as agreed and instead delivered it with a delay of 41 days. However, within three months from the date of installation of the engine the taxi started having frequent breakdowns and the engine giving lot of trouble. In reply the respondent No. 2 contended that the appellant had not complied with the terms of the warranty and taken the vehicle for the third servicing after it had covered 8,000 kms. in excess. The respondent No. 1 has also contested the complaint by raising a preliminary objection that the complainant was not a consumer within the meaning of Section 2 of the COPRA (hereinafter called the Act).

We have heard learned Counsel and perused the impugned order. The admitted position is that the taxi of the complainant/appellant, bearing registration No. GDV-2023, which has been provided by the respondent No. 2 with a Jaya diesel engine manufactured by the respondent No. 1 against the full payment of its cost, started giving trouble hardly about three months after its installation. There is no dispute that the appellant was the owner of the taxi and used to ply it along the Mapusa-Aldona road and vice-versa. It is the appellant''s case that on account of these frequent breakdowns, passengers in the taxi were stranded on the road and lot of inconvenience was being caused not only to them but for the appellant himself with the consequent loss of business. Further, due to this stopage of the vehicle on the road on account of the engine failure, the appellant had to leave the taxi where it had stopped functioning and go to contact the respondent No. 2 for repairs of the engine. On two occasions, he had to take the taxi to Ponda which is at a distance of about 50 kms. from Aldona where the respondent No. 2''s workshop is located. On several occasions the mechanic of the respondent No. 1 had to be called to check the car on the spot where it has stopped so as to decide whether the vehicle should be towed to Ponda Service Station for repairs and for which he had to pay his charges. Admittedly, all these breakdowns had occurred during the period of warranty of one year as the diesel engine was fitted in the appellant''s car on 24.12.1993.

THE case of the opposite party No. 1 is that at no time any repairs had been carried out, during warranty period, to the diesel engine of the taxi and even the parts required to be changed by the respondent No. 2 were not engine parts or parts connected with the engine. THE defence of respondent No. 2 is that the appellant/complainant was not regular in taking the vehicle for servicing within the prescribed period. THE third servicing was done after the car had plied over a distance of around 6,000 kms. in excess of what had been stipulated for the warranty period of free servicing. Hence since the appellant failed to comply with the terms and conditions of the warranty he could not claim the benefit of compensation under the Act because damages, if any, cause to the engine were due to his own fault or negligence. We are unable to persuade ourselves that the problems complained of by the appellant are consequent of his delay in carrying on the third servicing of the car within the stipulated time. The Certificate of Surveyor Shenvi, dated 25.3.1997, duly supported by his affidavit which was not even contested nor rebutted by the respondents, clearly points out to the sub-standard quality of the materials used in the manufacturing/assembling of the engine components thus amounting to a manufacturing defect of the engine. Similarly the Field Technical Reports, dated 1.7.1994 and 15.7.1994 placed on the file also speak to the fact of the poor quality of the piston rings of the engine leading to its frequent breakdowns with rupture of the head gasket and consequent excessive consumption of oil. The reason given by the Forum to discard the Surveyor Shenvi''s Report and ignore his affidavit are totally unacceptable once the respondents failed to rebut its contents and did not even sought to cross examine him on the matter. Further, the non-consideration of the affidavit of Gurudas Naik indicates also obvious non-application of mind, being therefore to be held as entirely misconceived.

ON the other hand we are at loss to appreciate the desinclination of the learned Forum in considering the implications of the contents of the respondent No. 1''s letters dated 17.9.1994 and 22.11.1994, which unequivocally acknowledged the defective nature of the engine in question and the defects of the same, the reason why it was sent to Coimbatore for a thorough check up, overhauling and repairs. This consideration itself amounts to deficiency in service in supplying a defective engine to the appellant which makes them liable to compensate him for the loss and inconvenience he had to bear with throughout this time, since hardly three months after the fitting of the engine to his taxi, which fact is also conclusively established by the abundant correspondence exchanged between the parties and other documentary evidence available on record. In this respect we are satisfied that from the appellant''s letter, dated 22.11.1994, it clearly flows that the engine fitted in the appellant''s taxi was plagued almost from the beginning by intrinsic defects, even during its warranty period, which were rectified. Being so, we are in agreement with the learned Counsel''s submission that since no where on record the respondents averred or placed documentary evidence to show, from the survey conducted by them or from the technical observations of the engine when it was dismantled at Coimbatore, the existence of any manufacturing defects before it was fitted to the appellant''s taxi on 24.12.1993. The learned Counsel seems also right when he contends that being the engine admittedly a defective engine the question of the complainant/appellant not adhering to the warranty agreement does not arise and, therefore, the constant breakdowns occurred with the appellant''s car cannot be linked to the delay on his part in timely carrying on the regular servicing of his taxi. The learned Forum was, therefore, not justified in disallowing the appellant''s claim for compensation by grossly overlooking the available evidence on record which, in our estimation, appears sufficient enough to substantiate his claim not only in respect of the refund of the cost of the engine but also with regard to the several heads of compensation for damages and loss sustained by him. In this view of the matter, the appeal is bound to succeed and is hereby allowed. The order of the Forum is quashed and set aside and the respondents are instead directed to refund to the appellant the price of the diesel engine to the tune of Rs. 65,000/-, by taking back the defective engine fitted to appellant''s taxi, with interest @ 18% per annum from 20.9.1993 on the said amount till the date of actual payment. They are further directed to pay to the appellant a consolidated amount of Rs. 20,000/- towards various heads of compensation prayed for by him in the prayer clause including mental agony and inconvenience, besides costs of Rs. 3,000/-. All these amounts should be paid by the respondents within 30 days from today failing which the same will carry interest @ 18% per annum till its full realisation. Order accordingly. Appeals allowed.