SUBHASH TRACTORS vs ASHOK KUMAR SINGH

THIS is an appeal against the judgment and order dated 28.9.1998 passed by District Forum, Gorakhpur in Complaint Case No. 116 of 1996. The facts of the case, stated in brief, are that the complainant Sri Ashok Kumar Singh purchased a Chetak Bajaj scooter on 28.8.1996 for an amount of Rs. 24,806.70. Since the purchase of this scooter there was some noise in the clutches. The opposite party told that this is a minor defect and it will be repaired. Inspite of several attempts being made, the noise from the clutches could not be eliminated. On 7.9.1996 one Niaz, mechanic removed the back tyre and after taking out the clutch plate, tried to remove the defect but it could not be done. Service Engineer of the opposite party Sri O.P. Singh told that the clutch of the vehicle has become defective and for which the Engine will have to be opened and the clutch will have to be replaced. It is alleged by the complainant that if the engine is opened then the scooter will not remain a new one. Inspite of several requests the scooter was not changed and the defect could not be removed. It was mentioned that it was a manufacturing defect but inspite of this the opposite party was not prepared to change the scooter. Even after several attempts the scooter remained in the same condition.

THE complainant has prayed for damages of Rs. 50,000/- on account of mental tension etc. He also prayed for Rs. 24,806.70 as the amount which was spent in getting the scooter replaced alongwith cost. The opposite party No. 1 filed a written statement and alleged that the case is not maintainable. According to the answering opposite party on 7.9.1996 a complaint was made about the noise in the clutch and the same was repaired on 9.9.1996. The defendant pretending to go to Lucknow did not take delivery of the scooter. Notices were sent to him but even then the scooter was not taken delivery of. On 22.11.1996 the opposite party informed the complainant of charges for keeping the scooter, but delivery of the vehicle was not taken and nothing was paid. There was no manufacturing defect in the scooter.

After hearing the learned Counsel for the parties and considering the evidence on record, the learned District Forum ordered for replacement of the scooter by a new one and in case of refusal to do so, return the price alongwith 18% per annum interest as loss. A sum of Rs. 10,000/- as compensation and Rs. 500/- as cost was also awarded in favour of the complainant. It was further ordered that in case of default in compliance of this order within 45 days, interest at the rate of 12% per annum will be paid on the entire amount till the date of payment.

AGGRIEVED against this order, opposite party No. 1 has come in appeal and has challenged the correctness of the order passed by the District Forum. Notice was also sent to M/s. Bajaj Auto Limited, Pune, opposite party No. 2, but inspite of service of notice, none turned up to contest the case of the complainant. From this Commission notice was sent by registered post to M/s. Bajaj Auto Limited in May, 1999 and even after lapse of one month the same was not returned unserved and hence service was presumed sufficient and the appeal proceeded against Bajaj Auto Limited.

WE have heard the learned Counsel for the opposite party as well as the complainant. Learned Counsel for the appellant has argued that there was no manufacturing defect in the scooter and there was only a slight noise in the clutch which was repaired within two days of bringing this scooter. He has also argued that the scooter is still lying with the dealer appellant and the complainant did not turn up to take delivery of the scooter. A perusal of the fact goes to show that the scooter was brought for repairs by the complainant at the appellant''s shop on 7.9.1996 but inspite of several attempts being made it could not be repaired. On the other hand, the contention of the appellant is that it was repaired on 9.9.1996 and the defect of noise was removed. If the defect of noise could be of clutch and was repaired within two days, it does not appeal to reason that the complainant would not have taken delivery of the scooter which was a brand new one for which he had spent money running to about Rs. 25,000/-. If there was a minor defect and it had no bearing on the working of the engine, then it could have been repaired easily. But as the complainant has mentioned the mechanic and the service engineer of opposite party No. 1 had told him that it cannot be repaired without opening the engine. This shows that the defect was a major one and was not repairable without opening the engine. Once an engine has been opened of a new scooter within 15 days of its purchase, then certainly it is not a minor defect but a major defect. The learned District Forum had examined the job card also and found that this fact of noise was entered in the job card. We have also called for the job card and find that a mention of defect in crank and clutch is mentioned. The crank is aligned with the engine and it is a part of the engine. If there is a defect in the crank, then there is a defect in the engine. It was the duty of opposite party to have changed the entire engine assembly at that time in order to get the defect removed but it did not do so. The complainant has mentioned in his complaint that one Niaz, Mechanic had repaired the scooter in the shop and he told about the removal of the defect after opening the engine. According to complainant the service Engineer Sri O.P. Singh had endorsed this view. No affidavit of these persons in the form of evidence has been filed by the appellant to controvert the allegations of the complainant. Thus we can safely hold on the basis of the records that there was a defect in the engine which required replacement.

THE learned Counsel for the appellant has argued that notices were sent to the complainant to take the scooter but the complainant did not turn up to do so. THEre is no evidence on record to show that the notices were given to the complainant by the appellant. Hence this part of the story cannot be relied upon. Thus we find that there was a defect in the scooter itself which could not be removed by the servicing of the scooter and there was deficiency in service on the part of the appellant in not handing over a defect-free scooter. THE only remedy now open is to replace the scooter with a new one.

LEARNED Counsel for the appellant has placed reliance on certain case laws which is discussed hereinafter. The first case is L. Bhangcho v. Divisional Manager, Mody Xerox Limited & Ors., 1992 (2) CPR 353, decided by State Commission, Assam. In this case the xerox machine which was purchased by the complainant went out of order soon after the purchase. During the service period, the opposite party failed to attend to the complaint and the complainant claimed for refund of the cost or its replacement. The complainant was not refunded the expenses borne by him on the ground that there was no report of the service engineer or an expert to show that the defect was a manufacturing one. This case does not apply on the facts of the present case because the mechanic and the service engineer told the complainant that the defect cannot be removed without opening the engine. The complainant could not file an expert report because the scooter is still lying with the appellant. The next case is Manager, M/s. Badkul Brothers v. Rajesh Kumar Sen, I (1993) CPJ 532. In this case a T.V.S. Moped was purchased which was defective. The District Forum had ordered for replacement of the Moped but it was not granted by the State Commission because there was no evidence to show that there was any manufacturing defect and the details of the defect was not given. In that case only the parts worth Rs. 446/- were to be replaced. Therefore on these facts it was held that this was not a manufacturing defect and the responsibility for changing of the vehicle is not on the manufacturer. This case was decided by Madhya Pradesh State Commission. This case also does not apply to the present case.

The third case is Bajaj Auto Limited v. P.K. Hota & Anr., 1992 (2) CPR 255. In this case the scooter started giving trouble after four months of the delivery. The manufacturer called for the entire engine assembly for purposes of investigation. The matter was remanded for a fresh consideration because the conduct of both the parties were found to be revengeful than in favour of settlement. This case also does not apply on the facts of the present case. The next case is Mahindra and Mahindra Limited v. B.G. Thakurdesai & Anr., I (1993) CPJ 72 (NC). In that case a jeep was purchased in which there was a defect in the engine. The engine was replaced and after removal of the defect by replacing of the engine, it was held by the National Commission that the jeep cannot be replaced. This case is also not applicable to the present case as only engine assembly has been replaced by the dealer or by the manufacturer to remove the defects.

THUS we find that there was a defect in the engine which could only have been removed by replacing entire engine assembly but the same has not been done inspite of lapse of three years and the scooter is still lying with the dealer. After a lapse of three years it will not be desirable for this Commission to order for changing the entire engine assembly because it might have been used by someone while in the custody of the dealer for the last three years. The only remedy as directed by the District Forum is for replacement of the scooter. The order of the learned District Forum for replacement of the scooter is perfectly correct on the facts of the case. The scooter was supplied through the appellant who is a dealer of the opposite party No. 2 and the liability for replacing the scooter is on both the appellant as well as the manufacturer, opposite party No. 2. Therefore the joint decree against both has rightly been passed by District Forum.

THE appellant should have written to the manufacturer when the defect in the crank shaft and clutch was noticed because both these defects arise out of the engine. He should have written to the manufacturer for changing the scooter because it had manufacturing defect from the very beginning. THErefore, appellant, who is a dealer, is also guilty in deficiency of service alongwith the manufacturer. THE appeal is therefore liable to be dismissed. ORDER The appeal is dismissed and the order and judgment of the District Forum is confirmed. However, the interest which is allowed by the District Forum is in the form of loss. The opposite parties of the complaint namely the appellant and M/s. Bajaj Auto Limited, Pune are given three months'' time to replace the scooter, failing which the entire amount awarded by the learned District Forum shall be payable by the opposite parties of the appeal to the complainant. Appeal dismissed.