Pradeep vs KUSHAL AUTO PVT. LTD.

THIS is an appeal against the order of District Forum, Amravati dated 19.4.1994 passed in complaint No. 102/93. A complaint was made by Pradeep Chiddarwar alleging defective manufacture of scooter by opposite party. The complaint alleged in this complaint that the scooter purchased by him manufactured by opposite party No. 2 was defective inasmuch as at the time of servicing its colour was completely removed. The complainant''s claim was opposed by opposite party No.1, local dealer, on the ground that the colour of petrol tank was peeled of it is being was rectified by replacing petrol tank with a new one. Thus, it is submitted by opposite party that it is not a manufacturing defect. However, by the impugned order the District Forum directed opposite party No.1 to replace the petrol tank of Bajaj scooter purchased by complainant free of cost.

WE have heard Mr. Paranjpe, Advocate for appellant and Mr. Kalantri, Advocate for the respondents. It is argued by Mr. Paranjpe, the learned Advocate appearing for appellant stated that as there was a manufacturing defect in the scooter manufactured by M/s. Bajaj Auto Limited, the old scooter should have been replaced by new scooter and not by merely replacing the petrol tank. The argument of Mr. Paranjpe is directed against M/s. Bajaj Auto Ltd. who is respondent No. 2 in this appeal. Notices from this Commission to appear for hearing dated 23.9.1994 were issued to the respondents. The notices were served on both the respondents viz. M/s Kushal Auto Ltd. & M/s. Bajaj Auto Ltd. The postal acknowledgements snowing the receipt of notices from this Commission are placed on record. However, M/s. Kushal Auto Ltd. appeared through Mr. Kalantri, Advocate, but none appeared for respondent No. 2, M/s. Bajaj Auto Ltd., Pune. We find that the impugned order directed the respondent No.l, local dealer to replace the petrol tank of the Bajaj scooter purchased by complainant. However, it is surprising that when the District Forum has reached the finding that there was manufacturing defect in the scooter, the manufacturer has not been held accountable for the manufacturing defect. The responsibility of replacement of the petrol tank is foisted on respondent No.l who is a local dealer. We find that the District Forum has not properly considered the allegations of complainant and therefore instead of considering the demand of complainant to get the replacement of scooter, ordered the replacement of petrol tank only by the local dealer.

The District Forum has also held that complainant''s claim for the replacement of scooter was not tenable. However, we find that although the claim of complainant to get the entire scooter replaced with a new one appears to be unreasonable. We find it reasonable that the entire scooter be repainted like a new scooter by the manufacturer. It is clearly proved that there was manufacturing defect in the scooter since the colour was peeled of at some places. When the consumer purchased a new scooter the peeled of colour or any changes in the colour can fall in the realm of manufacturing defect. Under this circumstance, it can be presumed to be a defect in the manufacture. The manufacturing includes the colouring of vehicles. Therefore, even if there is peeled of colour, there can be no hesitation to come to the conclusion that complainant is entitled to the removal of that defect by repainting the whole scooter like a new scooter. In this case, despite the notice manufacturer did not attend the hearing of this Commission and therefore we presume that M/s. Bajaj Auto Ltd. does not want to say anything in answer to the grounds of appeal which are before us for consideration. The appellant therefore has made prayer that the impugned order be modified and the whole scooter be replaced. At the same time, we find that the local dealer, M/s. Kushal Auto Pvt. Ltd. is not at all responsible for any manufacturing defect and also is not liable for the replacement of the petrol tank or the scooter. Hence, we pass the following order : ORDER

APPEAL is allowed. The impugned order is modified to the extent that instead of respondent No.1, respondent No. 2 M/s. Bajaj Auto Ltd., Pune shall re-paint the whole scooter with new colour like a new scooter which shall be free from any defects. Opposite party No. 2 M/s. Bajaj Auto Ltd., shall repaint the scooter within 30 days from the receipt of this order, failing which opposite party No. 2 shall pay to complainant Rs. 50/- per day towards compensation till the scooter is not fully painted. The appellant also be paid Rs. 1000/- as costs of this appeal. However, there would be no order against respondent No. 1, M/s. Kushal Auto Ltd. APPEAL allowed with costs.