SWARAJ MAZDA LTD. vs P.K.CHAKKAPPORE

THE appellant was the opposite party before the State Commission where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the appellant.

BRIEF facts of the case are that the complainant had purchased a Swaraj Mazda Light Commercial Vehicle from the appellant which was delivered to him on 8.1.1992. Since this vehicle did not meet the necessary requirement, like that of a sleeper cabin, necessary to obtain the licence from the licensing authority, on a request being made by the complainant, a vehicle with sleeper cabin was supplied to the complainant on 26.6.1992. On the ground that this vehicle has serious problems and defects which were not being removed, a complaint was filed before the District Forum on 20.9.1992. The District Forum after hearing the parties dismissed this complaint vide its order dated 25.8.1994. During the pendency of this complaint, the complainant filed another complaint before the State Commission alleging manufacturing defect and praying for replacement of vehicle. The State Commission after hearing the parties passed the following order: "In the result we pass an order directing the 1st opposite party to replace the vehicle with a new vehicle of similar nature without charging anything more within a period of 2 months from today. On failure to replace the vehicle by a new vehicle by the 1st opposite party, complainant is entitled to get the cost of the vehicle paid by the complainant together with interest at the rate of 15% p.a. from 7.12.1991. The complainant will also get compensation of Rs. 15,000/- for the loss suffered by the complainant from the 1st opposite party. The 1st opposite party is entitled to get surrender of the vehicle by complainant on replacement of the vehicle or payment of cost of the vehicle and interest and compensation awarded in these proceedings. 2nd opposite party is not liable to pay any compensation. Complainant is also entitled to get Rs. 1,500/- towards his costs. O.R is disposed of as above."

AGGRIEVED by this order, the appellant, Swaraj Mazda has filed this appeal before us. We heard the learned Counsel for the parties at length and perused the material on record. What we find is that while filing a complaint before the District Forum, Ernakulam which was dismissed on 25.8.1994, no allegation about any manufacturing defect or any problem with the engine has been referred to and secondly while this complaint was pending, the second complaint before the State Commission was filed in 1993 itself but there is no reference whatsoever about the complaint already filed pending before the District Forum. We also see that as alleged by the complainant, first time the two tyres bursted out were on 4.9.1992 and the complaint before the District Forum was filed on 26.9.1992 yet there is no mention of this episode in the complaint filed before the District forum. Both these facts leave us with clear impression that the complainant did not approach the Consumer Fora with clean hands. Be that this it may, there are two parts of the complaint-one relates to the defects in chassis of the vehicle purchased and second relates to manufacturing defect in the Engine. As per record available on the file, we see no difficulty in appreciating that there were indeed problems with the chassis; perhaps as a result of this defect there were continuous problem of bursting of tyres and the vehicle tilting on one side. However, we are somehow unable to appreciate that in the order passed by the State Commission dated 1.12.1995 which is under challenge before us, not much consideration has been shown to the two letters dated 20.1.1993 and 27.2.1993 which are on record. These letters were addressed to the complainant about the appellant''s willingness to replace the chassis, which is very important as there was problem with the chassis, but it is the complainant who declined this offer. As far as the defects in the engine is concerned, after going through the job cards on record, we are unable to appreciate as to how the State Commission arrived at the conclusion which it did, about manufacturing defects. We get the impression that the important ground it relied upon to do so is the report of the Local Commissioner appointed by it. We have gone through this report very carefully and two points arise-one, the justification for appointing a Surveyor and loss assessor as a Local Commissioner and second, no involvement of at least second respondent, that is the dealer, at the time of inspection of vehicle.

WE have also seen the order appointing Local Commissioner by the State Commission vide its letter dated 27.7.1995. There is presence of O.P. but there is no direction that the Local Commissioner appointed by it that it shall be prescribed by O.P.-which we are unable to appreciate. It is an admitted position that this vehicle had met with an accident in June, 1994 and since then it was stationary till the date of inspection. The inspection is carried out by the Local Commissioner in 1996, in the presence only of the complainant. We have no knowledge about the qualification of the ''Surveyor and the loss assessor'' i.e., the Local Commissioner. The State Commission should have taken pains to appoint a qualified person in this regard for going into any technical issues involved rather than appointing a loss assessor, based on a list supplied by the complainant before the State Commission. If there are two parties they must agree to a common name. There is no such material on record. Consumer Forums should appoint a person who is normally of a Government agency and with requisite qualification and background to enable them to submit the report as a neutral organisation/person which is not happened in this case. The inspection, hopefully, was carried out keeping in mind the provisions of Section 13 of CPA. Vehicle in question should have gone to an appropriate Testing House. Lists for such purposes are notified. If for any reason it is not possible to follow the provisions of Section 13(C) of the Act then parties must agree to a common name. This has not been done in this case. We have gone through the report of the Local Commissioner very carefully and found that he very candidly admits that they did not run vehicle as it was not on the tyres. In fact not a word is said about loss caused by the accident in 1994. The very point of excessive oil consumption could not be said to be a manufacturing defect in the engine. What is shown in his observation is, that running of the "engine is weak and there is every symptom of excessive oil consumption as observed from the engine breather". How could this be said to be a manufacturing defect, has not been explained even while he is candid enough to say that "road test can only reveal the exact damage of the gear box and the clutch which is not possible without wheels and which it did without running the vehicle. He goes on to add "Front left side, main leave of the spring is broken.. "We fail to appreciate the very rationality of a Surveyor- a loss assessor-to jump at the conclusion based on his observation of excessive oil consumption that this vehicle requires replacement with new one, while not caring to refer to the factum of its meeting with an accident and having been on the wooden block for over a year. This is important to note that the proof of over consumption, so heavily relied upon by the Local Commissioner, in Dealer''s Record, which is not on record. The record on file dated 18.5.1993 shows the complainant reporting of oil consumption of 1- to 2 litres per 500 kms. Action taken was tapping of oil and kept under observation.."This is not a satisfactory/ acceptable proof of excessive oil consumption, there is no other material on record. This report does not inspile any confidence. We will not like to comment on the impartiality or otherwise of the Surveyors and loss assessors. One clear impression we get and which is admitted by the appellant, that there was indeed some problem with the chassis which according to the complainant was from the day one whereas it is case of the appellant that this defect is on account of overloading. Be that as it may we are quite clear that the material on record does not in any way substantiate or corroborate the fact that there was any manufacturing defect even when there is material on record say that there were problems with the chassis for whatever reasons. The petitioner showed his willingness to replace the chassis and put the vehicle back on the road including any repairs to the engine for which the learned Counsel for the respondent/complainant was not agreeable. A suggestion to appoint a qualified automobile engineer from the IIT, Madras to go, visit and inspect the vehicle and submit its report, was also not acceptable to the learned Counsel for the complainant. There is no dispute that vehicle has run for 34,650 kms as per the inspection report even though the learned Counsel for the appellant stated that there has been repeated tampering with the milometre. This all leaves us with a clear view that the complainant has not been able to prove any defect in the engine and State Commission''s reliance on the inspection report in our view is misplaced for two reasons-one about the qualification of the Local Commission and secondly the assumptions on which this report is based, which in our view are not well founded, especially, when the vehicle had met with an accident: what damage was caused by that accident is not on record, nor has that been commented upon by the Surveyor/Local Commissioner. However, what is clear is that there has been a problem with the chassis resulting in possible bursting of tyres replacement of which was offered by appellant in 1993 which was declined by the complainant. It is important to note that learned Counsel for the complainant admitted at the Bar that there is no way the complainant can comply with the first direction of the State Commission. In our view he is in no position to ensure compliance even with the second direction. For proper compliance he has to return his vehicle in a certain condition which he is unable to do.

WE appreciate that the complainant is a poor person but that should not be any ground for concealing basic information like the complaint being filed before two consumer forums or for that matter concealing this fact from the State Commission.

IN our view what is required is a running vehicle for the complainant. For this we direct the appellant to get the vehicle inspected by a faculty member of IIT, Madras or by an engineer of AAI which shall be made available by the respondent/complainant about the current status of the vehicle vis-a-vis availability of all parts which should have been there and then replace the chassis, carry out all other repairs which even is necessary to bring the vehicle on road and running. After completing the repairs and making the vehicle roadworthy petitioner is directed to get the vehicle retested from an authorised agency referred to earlier, in the presence of the parties about the road worthiness of the vehicle and removal of all defects. After the satisfaction of the qualified and competent Commissioner referred to earlier the vehicle be handed over to the complainant along with a manufacture''s guarantee for one year. To this extent the appeal is allowed and order of the State Commission is modified. No order as to costs.