SARVA DAMAN SINGH vs YASH AUTOMOBILES PRIVATE LTD

COMPLAINANT Dr. Sarva Daman Singh is a practising doctor and had presented the complaint on 30 July, 1992 in the Registry of the Commission impleading therein M/s. Yash Automobiles Pvt. Ltd., Rae Bareilly and M/s. Bajaj Auto Ltd., Pune as the two opposite parties.

THE complainant says that he had purchased a ''Bajaj Chetak'' scooter (Engine No. 117079 and chassis No. 104301) from Yash Automobiles on June 4,1991 on cash down basis. THE price of Rs. 15,100/- was paid on the form of a Bank Draft on the Punjab National Bank and a further sum of Rs. 900/- was also paid in cash to the Yash Automobiles towards registration fee for the scooter. THE delivery of the scooter was given to the complainant by Yash Automobiles alongwith an assurance that the vehicle would be got registered with the Regional Transport Authority and it would be intimated to the complainant within a reasonable time. Service coupons and a warranty certificate were also issued to the complainant. In paragraphs 5 to 7 the complainant has detailed the defects both minor and major as well as manufacturing faults found in the vehicle. They were: (i) Chassis welding was found to be badly cracked which is a major manufacturing defect, (ii) The scooter was found to be badly rusted which ultimately resulted in the breaking of the stepny bracket. (iii) Shockers were found to be mechanically defective, (iv) Unwanted noise was also detected to be coming from the engine. (v) The average of the scooter was not satisfactory.

The scooter was taken, as desired by Yash Automobiles to Auto Care Servicing Station, Mahanagar at Lucknow where the defective shockers were replaced but the other defects were not removed on the ground that they should be got repaired from Yash Automobiles. The first and the second service of the scooter was done by Auto care Servicing Station and the service coupons were senty to Bajaj Auto Ltd., Pune. The complainant proceeds to say that an Engineer of Yash Automobiles inspected the scooter and found that the defects pointed out by the complainant were there in the scooter. The Yash Automobiles is said to have told the complainant that the major defect in chassis of the scooter could not be repaired and the chassis would have to be replaced by a new one when it was available.

THE complainant proceeds to say that he kept on asking the Yash Automobiles to replace the chassis but was asked by it to approach the Commercial Motor Works Ltd. on Mahatma Gandhi Marg, Lucknow for the purpose. Also that necessary correspondence should be done by the complainant in this regard with Bajaj Auto Ltd., Pune. According to the complainant the scooter was got inspected at Commercial Motor Works, Lucknow by one Shri S.D. Chataley, Senior Engineer of the Commercial Motors who confirmed that there was defect also in the chassis which could not be repaired and had to be replaced with a new one. The complainant was advised to get in touch again with Yash Automobiles. The complainant did so and in paragraphs 16 and 17 of the petition he has mentioned that in similar circumstances defective scooters were replaced by a new one in cases of one Sri Balram and one Sri K.L. Tiwari and further that after inspection of the complainant''s scooter on 11 January, 1992 the Service Engineer of the Commercial Motor Works Sri Ajay Dixit made a detailed report of the defects found in the scooter sold to the complainant which included a broken stepny bracket, improper functioning gears, knocking pistons and cracked chassis. On this, according to the complainant, the defective scooter was returned to Yash Automobiles on 14 January, 1992 who took it back but said that the money paid by the complainant would be refunded to him only after some time as many formalities had to be completed before doing so. The complainant says that the money was not refunded to him and all the efforts made by the complainant in this respect became futile. The complainant says that he suffered harassment and financial loss on account of the attitude of the opposite parties. He sent a notice through a Lawyer to Bajaj Auto Ltd., Pune on 1 November, 1991 detailing the facts and claiming replacement of the scooter and a further notice to the Operation Manager (Service), Bajaj Auto Ltd., Pune on 4 February, 1992 saying that in any case the amount paid by the complainant as the price should be got refunded to him. Complainant received a letter from the Operation Manager (Service) dated 25 November, 1991 with reference to his earlier notice dated 1 November, 1991 in which it was mentioned that the Company was collecting details from its concerned dealers. Service Engineer and others about the complaint made by the complainant and that a reply will be sent on receipt of necessary details. However, no such reply was received by the complainant or his Counsel. Thereafter, the complaint was filed.

IN the complaint, the complainant has asked for refund of Rs. 16,000/- alongwith penal interest from the Bajaj Auto Ltd. and for a sum of rupees one lakh as compensation from both the opposite parties for the mental agony, harassment and financial loss suffered by him on account of the negligent and irresponsible behaviour on the part of the opposite parties. He has also asked for costs of the proceedings. The assertions made in the complaint from paragraph 1 to paragraph 24 have been supported by an affidavit of the complainant who has also filed copies of the two notices sent through a Counsel as Annexures II and III and the reply dated 25 November, 1991 received from Bajaj Auto Ltd. as Annexure IV. Notices by registered post were sent to both the opposite parties alongwith copies of the complaint and the affidavit (19 pages), first in the year 1992 and thereafter in the year 1995 in which it was mentioned that it was by way of last opportunity that time was being allowed for a written statement. The order-sheet shows that between 30 December, 1992 and 25 July,1996 the case was listed before the Commission on several dates but no one appeared on behalf of the opposite parties on any date. The complainant was represented by his Counsel on various dates. However, on 25 July, 1995, when the case was taken up, no one was present before the Commission for either party. Orders were reserved to be made when we had looked into the matter ourselves. From the recital of facts mentioned earlier, which are all supported by an affidavit of the complainant, it is more than obvious that the opposite parties sold to the complainant a defective scooter suffering from various defects including manufacturing defect of a cracked chassis. It is also established that inspite of repeated efforts and assurances the scooter was not replaced by the Bajaj Auto Ltd. which had sold it to the complainant through Yash Automobiles Pvt. Ltd. It is further established that the price of scooter realised from complainant (a total sum of rupees sixteen thousand) was not refunded to him. The uncontroverted affidavit of the complainant clearly establishes that he was made to run from pillar to post and had to undergo great mental agony and harassment in the transaction on account of the conduct of the opposite parties. The second opposite party (M/s. Bajaj Auto Ltd., Pune) also kept him waiting for a reply even after having acknowledged through their letter dated 25 November, 1991 (Annexure IV) in reply to the legal notices served by the complainant upon it that the complainant would hear from them soon. The attitude adopted by the opposite parties in the matter, even after selling to the complainant a defective scooter for consideration charged by them, amounts to ''deficiency7 on their part within the meaning of that term under the Consumer Protection Act, 1986. They are liable to compensate the complainant.

IT is noticeable that the price of a Bajaj Chetak scooter has gone up considerably from the price prevailing on 4 June, 1991 when it was purchased by the complainant on cash-down basis. Exasperated by the behavior of the opposite parties the complainant was left with no option but to ask for a refund of its price with interest. The complainant is certainly entitled to it and we are inclined to direct the opposite parties jointly and severally to refund to the complainant the sum of rupees sixteen thousand paid by the complainant for the scooter (inclusive of miscellaneous expenses of Rs. 900/- realised by the first opposite party) with interest @ 18% per annum from 4 June, 1991 till its payment to the complainant. We are also inclined to direct the opposite parties, in the like manner, to pay to the complainant a sum of rupees five thousand by way of compensation for undoubted mental agony and harassment suffered by him on account of the lapses on the part of the two opposite parties. In addition, the complainant will be entitled to a sum of rupees one thousand by way of costs of these proceedings from them.

THE complaint shall stand allowed as aforesaid. THE opposite parties are directed to refund to the complainant a sum of rupees sixteen thousand with interest @ 18% per annum from 4 June, 1991 to the date of actual payment apart from paying to the complainant a sum of rupees five thousand by way of compensation for mental agony and harassment and a further sum of rupees one thousand as costs of the proceedings within three months from today failing which they shall be liable to pay further interest at the rate of 18% per annum on the entire amount due under this order from the due date till the date of actual payment. Let copies of this order be sent to the parties by post within two weeks as per rules. Complaint allowed.