Scooters India Ltd. vs PRASENJIT HALDER

-THIS appeal is directed against the judgment and order dated 26.8.2002 passed in C.C. No. under which the Forum allowed the complaint on contest against all the O.Ps. and directed them to replace the defective three-wheeler with a new one of similar description that would be free from defect within 60 days from the date of this order, failing which, the O.Ps. would be liable, either separately or jointly, to return the consideration money taken from the complainant within a period of 60 days to be computed from the date following the date of expiry of the above 60 days in the case of replacement of the thing, otherwise the O.Ps. would be liable to pay interest @ 9% p.a. on the said consideration money for the period of default, if any. The Forum did not allow the prayer for compensation as made by the complainant. Being aggrieved by this order the O.Ps. have preferred the present appeal challenging that order as erroneous, illegal and unsustainable.

THE case of the complainant was that he being an unemployed youth holding a route permit of auto rickshaw purchased one Diesel Vikram (Three-wheeler''s model and colour 410D/Auto/Yellow and Black) from the dealer, the O.P. No. 1-M/s. Manik Motors as per Invoice for Rs. 1,01,000/- (payment by cash of Rs. 21,000/- and by Bank Draft Rs. 80,000/- taken as loan from the Co-operative Agricultural Rural Development Bank, Aliporeduar). But within 15 days from the date of purchase the Engine Plate of the auto rickshaw broke down, mobile oil leaked with excess consumption and the engine got heated and problem over starting of the vehicle developed. THE complainant at once informed the O.P. No. 1 over telephone of such problem arising in the vehicle but O.P. No. 1 did not take any step. Such negligence on the part of the O.P. constituted deficiency in service and also unfair trade practice particularly when the complainant suffered financial loss and various hazards as a result. Hence he brought this complaint before the Consumer Forum praying for an order for refund of consideration money with interest and compensation for a sum of Rs. 2,09,000/- and cost of litigation of Rs. 2,000/-. The Forum after hearing both and considering the materials on record adduced by both the sides came to the conclusion that there had been deficiency in service on the part of the O.Ps. and, therefore, they were liable to either replace the auto rickshaw in dispute by a new and defect free one or, in the alternative, they would refund the consideration money which they took from the complainant as price of the auto rickshaw in dispute to the complainant.

It is the first contention of the learned Advocate for the appellant that under the terms of the warranty that was valid for 6 months if the purchaser does not avail himself of the benefit of free service once every month during this period of 6 months, then he will be deprived of getting any benefit of this warranty and, therefore, the contention of the complainant that the vehicle developed defects during the period of warranty is of no avail. As against this point raised by the O.Ps.-appellants the finding of the Forum is that the defects emerged in the vehicle within a very short period, namely, 15 days from the date of purchase and the complainant communicated to the O.Ps. about such defects which touched the engine of the vehicle also on different dates like 31.3.2000, 8.10.2001, etc., but in vain. Since the distance between the place of the complainant and the place where the service centre of the O.P. No. 1 was situated was extremely long being 360 kms., it was not possible for the complainant to come to such a distant place every month with his defective vehicle for obvious reasons, as such an exercise would involve not only excessive cost but also a good number of hazards of different kinds for example, either it would have to be carried in a truck on payment of substantial amount of hiring charges, or it would have to be carried along such a long route manually by means of pulling and pushing over the road. The Forum has further found that admittedly the O.P. gave an assurance to the complainant at the time of the purchase of the vehicle that a service centre would be set up at Aliporeduar to enable the purchasers like the complainant to have servicing of their vehicles easily and conveniently, but the O.P. No. 1 did not care to keep its words and, the complainant thereby has rightly and justifiably taken the plea that on the basis of such an assurance being given by the O.P. he purchased the auto rickshaw and the assurance having not been fulfilled it is the O.P. who is at fault and not the complainant for such violation of the terms of the warranty. In our opinion, keeping in view the general trend of legislation as well as various decisions of the Apex Court concerning the consumer cases to the effect that the interpretation of the various provisions of the law on the subject should be in a consumer-friendly way, the above findings of the Forum are not without justification. The O.P. gave an assurance to the complainant prior to his purchase of the vehicle that they would open a service centre for their vehicles near about their place of residence or place of business and on the basis of such an assurance or word of the O.Ps. he purchased the vehicle, but ultimately such an assurance was not kept. Such a failure on the part of the O.P. certainly amounts to a deficiency in service. The consequent failure of the complainant to take his defective vehicle to the service centre at Siliguri from Aliporeduar a far away place, can very well be explained away by virtue of this reason. In this connection the O.P. No. 1''s letter dated 4.12.2001 informing the complainant about organising of a service camp at their dealership point at Siliguri from 12.12.2001 to 24.12.2001 in association with M/s. Greaves Auto Ltd. is relevant. This shows that the O.P. No. 1 was conscious about their inability to keep their words by installing a service centre at Aliporeduar as they allegedly undertook to do before the complainant. The second contention of the learned Advocate for the appellant is that there was no manufacturing defect and the manufacturer has not been impleaded. As to this the finding of the Forum is that defective workmanship and materials except for rubber components, bulbs, windshield glass, parts like batteries, tyres, etc. coverable by the manufacturer/guarantee are subject to terms and conditions of repair. In other words, according to the Forum, such defects as alleged are practically manufacturing defects. The Forum came to such a conclusion in view of the averment of the O.P. Nos. 2 and 3 in paragraph 9 of their written version where they have stated that the matters were taken up with the engine manufacturers who agreed to replace the engine by way of a good gesture. According to the opinion of the Forum, such question of replacement can arise only when an engine of the vehicle is found defective and a defect in the Engine is certainly a manufacturing defect. The Forum held that thus it was practically admitted that the vehicle was suffering from some manufacturing defect and came within the purview of the warranty for being replaced. The learned Advocate for the appellant has vehemently argued that without referring the matter to an expert and getting his opinion as to the nature of the alleged defects in the vehicle the Forum could not take the defects as manufacturing defects. In support of this contention the learned Advocate has referred to the decision reported in I (2000) CPJ 54 (MP S.C.D.R.C., Bhopal). This ruling was also referred to before the Forum which has distinguished this case from our present case by giving some reasons. In that case under reference an old tractor was the subject matter of dispute whereas in the instant case some new three wheelers which developed some defects within 15 days of purchase are in dispute and moreover the Inspection Report dated 9.6.2001 would go to show that these were manifold lapses like want of replacement of Engine Oil in time, Tap adjustment being improper creating noise, Air Cleaner not cleaned up in time. Gear Box Oil not changed in due period. Fuel Filter not replaced in time, clutch adjustment being improper and greasing not done creating noise. According to the Forum all such findings of the Surveyor go to show that unless there had been some inherent or chronic defect the consequential disorder could not have occasioned. In view of such nature of the defect and the disorder occurring in respect of the vital parts of the vehicle including its Engine the Forum has held that such defects constitute manufacturing defects in the auto rickshaw concerned and no expert is required to reaffirm this position. In our opinion, the above findings of the Forum get strength by the admitted fact that the O.P. Nos. 2 and 3 who are manufacturers of the auto rickshaw in dispute minus its Engine and who took the Engine from its manufacturer M/s. Greaves Ltd., Aurangabad took up the matter with them (M/s. Greaves Ltd.) when the later agreed to replace the Engine of the disputed vehicle by a good one (vide paragraph 9 of the written version of the O.P. Nos. 2 and 3 filed before the Forum). It has been argued on behalf of the O.P. Nos. 2 and 3 that such offer was made by the said manufacturer of the Engine by way of a good gesture. But the Forum quite rightly has disblieved this to be correct and according to it unless the Engine is found defective, the manufacturer cannot so easily express its readiness to get it replaced by a new one. We also accept this view of the Forum. It is really difficult to accept the contention that simply as a good gesture a businessman can go to such an extent. Because to replace an Engine by a new one in respect of a huge number of purchasers (once such a policy is pursued in respect of one purchaser, the company cannot discriminate and has to accept similar claims of other buyers who have experienced similar defects in their vehicles) and this is not a matter of joke as it involves considerable cost and a businessman, regard being had to the course of conduct of human beings of ordinary prudence, is supposed hardly to take such risks out of sheer courtesy or good gesture. Therefore, we do not think that the Forum has committed any error by arriving at such a conclusion that the nature of the defects which the disputed vehicle has been subjected to and the above mentioned admission of the O.P. Nos. 2 and 3 taken together unerringly show that the defects occurring to the disputed vehicle just after 15 days from the date of its purchase were in the nature of manufacturing defects and the omission on the part of the Forum to refer the matter to any expert for opinion on this question cannot be said to have struck any blow to the credibility of the complainant''s case. So we do not accept the contention of the appellant that in the absence of such a report of the expert the case of the complainant-respondent has no legs to stand upon. Another contention of the appellant also does not impress us that the non-joinder of the manufacturer as a party to the complaint is fatal rendering the complaint bad and liable to be dismissed. Admittedly the O.P. Nos. 2 and 3 are the manufacturers of the auto rickshaw in dispute while the O.P. No. 1 is the dealer from whom the complainant purchased the vehicle. In our opinion this is enough for the complainant while filing the complaint and it is not the intention of the law to require impleadment of all the manufacturers if different parts of a vehicle are manufactured by different persons.

THE decision reported in 2001 WBLR 3 (CP) (SC) of the W.B.S.C.D.R.C. referred to by the learned Advocate for the appellant is found to be not applicable to the facts of the instant case. In that case under reference there was no material to prove that the chassis of the vehicle in dispute had any inherent defect and moreover there were repairs effected to the vehicle which were made by some roadside garage a fact which constituted violation of warranty and on that score the Commission held that the complainant was not entitled to any relief. But in our case as we have seen the alleged defects have been proved to be inherent and manufacturing defects in respect of the Engine of the vehicle and, therefore, they were corerable under the terms of warranty and secondly, as regards the allegation that the repairs had been done by roadside garage, the special circumstances responsible for compelling the complainant to get such repairs done by unauthorised repairing shops have been described above. It was due to the long distance of about 360 kms. between the complainant''s place and the O.P.''s service centre and garage at Siliguri that the complainant could not be in a position to take the vehicle to the O.P.''s garage. We have also shown that in spite of an assurance given by the O.P. No. 1 that it would start and instal a service centre near the place of the complainant at Aliporeduar, no such promise has ultimately been kept by the O.P. So the case under reference is clearly distinguishable from the case at hand and that judgment is not attracted here. In view of the reasons discussed above we are constrained to hold that the contention advanced by the learned Advocate for the appellant are not impressive and we do not find any fault with the findings of the Forum below which should remain intact. Accordingly it is ordered that the appeal be dismissed on contest, however, without any cost under the circumstances. The impugned judgment and order be affirmed. Appeal dismissed.