SCOOTER INDIA LIMITED vs Manjulaben Kiritbhai

THIS Revision Petition has been filed by Scooter India Limited-petitioner herein, which was the Opposite Party before the District Consumer Disputes Redressal Forum, Bharuch (for short ''the District Forum'') challenging the Final Order dated 25.1.2006 in Appeal No. 1278 of 2005 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (for short ''the State Commission'') thereby dismissing the Appeal and confirming the Order passed by the District Forum.

SHORTLY stated, the facts leading to the filing of the present Complaint are: Complainant/respondent had purchased a Vikram Delivery Van, i.e., Three Wheeler Tempo bearing registration No. GJ-16U-4025 on 31.8.2003 for Rs. 1,50,000 from the authorized dealer, viz., M/s. Dharati Vehicles-respondent No. 3 herein, after taking loan from M/s. Chola Mangalam. It was stated in the Complaint that the said vehicle started giving problems within 3 months of its purchase as there were manufacturing defects in it. That the said fact was brought to the knowledge of the petitioner but the defects were not removed even after initial repairs. That as per instructions of the petitioner, the said vehicle was kept for further investigation at their showroom from 15.1.2004 to 28.1.2004 but in spite of that also, the problems in the vehicle persisted and Rs. 15,000 were charged for the said repairs though the vehicle was under warranty. Thus, being aggrieved, complainant/respondent filed the Complaint before the District Forum.

ON being served, petitioner filed its Written Statement dated 11.6.2004 stating that the complainant had purchased the tempo at the cost of Rs. 1,50,000 wherein a discount of Rs. 2,000 was given to him and an amount of Rs. 1,48,000 was recovered from the complainant. It was stated that the said tempo was purchased on 31.8.2003 and upto 15.1.2004, no defects were reported by the complainant to the petitioner. That during the period from 15.1.2004 to 28.1.2004, the vehicle was kept at their showroom for investigation by their expert technician and, on investigation, it was found that the oil was not put in the engine of the vehicle and the vehicle was being run in a defective manner. Though the capacity of the tempo was 1250 Kilograms but the goods loaded in it were beyond its capacity, which led to the occurrence of the repeated faults. That as per Rules of the Company, clutch plates, silencer, average companion and baby chakkar, etc. cannot be replaced without payment even during warranty period and, therefore, Rs. 15,000 were charged from the complainant for the said repairs. Thus, denying the allegations made in the Complaint, petitioner prayed for dismissal of the Complaint.

DISTRICT Forum, after taking into consideration, the pleadings and the evidence led by the parties, allowed the Complaint and directed the petitioner to replace the tempo bearing No. GJ-16U-4025 with a new tempo within a period of 40 days failing which petitioner was directed to pay Rs. 1,38,000 (after deducting Rs. 10,000 for usage from the amount of Rs. 1,48,000 paid by the complainant for the tempo in question) to the complainant along with interest @ 7% p.a. from the date of filing the Complaint.

AGGRIEVED by the Order passed by the District Forum, petitioner filed the Appeal before the State Commission. The State Commission relying upon the Judgment of this Commission in Scooter India Limited v. Mahabanda Mohantee, reported in II (2005) CPJ 136 (NC)=(2003) 2 CLD 119, dismissed the Appeal.

AGGRIEVED by the Order passed by the State Commission, petitioner has preferred this Revision Petition.

LEARNED Counsel appearing for the petitioner contends that there was no manufacturing defect in the vehicle and, in any case, none has been pointed out. That the onus to prove the manufacturing defect was on the complainant/respondent which he has failed to prove. That the dealer/respondent No. 3, to whom the vehicle was taken for repairs, had repaired the vehicle and the complainant had recorded his satisfaction to that effect. That the Fora below have erred in directing the petitioner to replace the vehicle. That the Judgment in Mahabanda Mohantee''s case (supra), is not applicable to the facts of this case as the said case has been decided on its own facts. As against this, learned Counsel appearing for the complainant/respondent contended that the vehicle started giving trouble immediately after its purchase and, in such circumstances, this Commission, in Mahabanda Mohantee''s case (supra), has held that it can be presumed that there was a manufacturing defect as the vehicle was not functioning properly right from the inception and the manufacturer could be asked to replace the vehicle.

THE onus to prove the allegation is on the person who alleges it. Section 13 of the Consumer Protection Act, 1986 provides that the complainant, who alleges defects in the goods, has to prove it and where the defects cannot be determined without proper analysis or tests, then, the same can be proved by getting the Report of an Expert. In the present case, complainant failed to lead any evidence.

AS against this, petitioner got the vehicle inspected by an Expert of the Company and, according to his Report, the defects may have crept in on account of lack of oil or due to overloading or on account that the vehicle was not being driven properly. The Inspection Report submitted by him had been discarded by the Fora below because the Affidavit of the said Expert had not been filed in support of the Report. The complainant did not lead any evidence to rebut the same. Even if, the Report of the Expert produced by the petitioner is discarded, the fact remains that the respondent had failed to prove that there was a manufacturing defect. In the absence of any such evidence, it cannot be said that there was any manufacturing defect in the vehicle.

IN Mahabanda Mohantee''s case (supra), this Commission, on the facts of that case, found that there were defects in the engine, gearbox, telecrown, body, brake systems, etc., which led to frequent breakdowns on the road. These facts persuaded this Commission to hold that there were manufacturing defects as the same had occurred soon after the purchase of the vehicle. No such defects had been pointed out by the complainant in the present case.

ALLEGATION of the petitioner is that the complainant/respondent had got the vehicle financed and, as he did not pay the instalments in time, the vehicle had been taken into possession by the financier and, in order to get the vehicle released, the complainant had got the Complaint filed. It is not disputed before us that the complainant is not in a position to produce the vehicle as the same has already been sold either by the complainant or by the financier. Until and unless, the manufacturing defect is pointed out and proved, the manufacturer cannot be asked to replace the vehicle.

DEALER/respondent No. 3, to whom the vehicle was given for repairs, had repaired the vehicle and the complainant had recorded his satisfaction to that effect. After having done so, the complainant cannot turn back and file the Complaint saying that there was a manufacturing defect. Defect, if any, had been repaired and the complainant had recorded his satisfaction. Having done so, the complainant cannot turn around and say that there was a manufacturing defect.

COUNSEL appearing for the complainant/ respondent also contended that the dealer/respondent No. 3 had charged Rs. 15,000 for replacing some of the parts during warranty period. It has been pointed out by the petitioner that the parts, which were replaced, were not covered under warranty and, therefore, the amount of Rs. 15,000 was recovered from the complainant as the price of new parts put in as well as the repairing charges of the vehicle. Counsel appearing for the complainant has not been able to show that the parts, which were replaced, were covered under warranty.

FOR the reasons stated above, we accept this Revision Petition, set aside the Order passed by the Fora below and dismiss the Complaint leaving the parties to bear their own costs. Revision Petition allowed.