CHAUDHARY AUTO MOBILES, HISSAR vs Anil kumar

WHETHER the original manufacturer is a necessary party in a complaint against the trader for the supply of defective goods? WHETHER all defective goods must be referred to an appropriate laboratory for analysis and test under sub- section (1) of Section 13 of the Consumer Protection Act? This is the twin issue which arises for determination in this appeal.

AS the questions aforesaid are pristinely legal the facts relating thereto may be noticed with relative brevity. Sh. Anil Kumar, complainant/respondent had purchased one Hero Honda Motor Cycle on the 19th of January, 1990 for Rs. 21,777/50 P. from the appellant concern. According to the complainant the said vehicle consumed inordinately excessive mobil-oil and when the appellant was approached in this behalf, they assured that after some time and use the vehicle would work satisfactorily and would not require any excessive mobil oil. The appellant further undertook to change the vehicle in case the said defect does not disappear. However, a later check on 20th March, 1990 disclosed that the engine of the said vehicle was worthless and then a promise was held out by the appellant that new parts shall be obtained from the manufacturing company and new engine will be fixed without any charges, if necessary by the 1st of April, 1990. The complainant, however, apprehended that the vehicle supplied to him was an accidented one which after unsatisfactory repair had been passed on to him as a new one. AS the guarantee period of one year was still subsisting and the motor cycle failed to give satisfactory service, the complainant approached the District Forum for relief seeking inter alia that the vehicle be changed with a new one. As many as three notices were issued to the appellant to come present before the Forum. The last one was issued on 28th of June, 1990. But in the meantime a cryptic letter dated 13 June, 1990 was sent by the appellant to the District Forum seeking dismissal of the complaint and thereafter the appellant contumaciously refused to appear before the same. Treating the said letter as a reply version, and consequent on the absence of the appellant, the District Forum felt compelled to proceed ex parte against them under Rule 4(8) of the Haryana Consumer Protection Rules. Accepting the testimony of the complainant the Tribunal came to the conclusion that the vehicle supplied was a defective one and consequently directed the appellant to supply another new Motor Cycle to the consumer within one month of the date of order. Aggrieved thereby the present appeal has been preferred.

Mr. Atul Lakhanpal, learned counsel for the appellant had first contended somewhat faintly that the appellant had been denied a full opportunity of hearing by the District Forum and the ex parte proceedings against them were not sustainable. It was submitted that the Forum erred gravely in not affording yet another opportunity to the appellant for presenting his case on merits.

THE aforesaid argument is only to be noticed and rejected. As the District Forum has recorded in the order (and which is not disputed before us) a notice was first issued to the appellant for giving their version in reply on the 17th of April, 1990 to appear on the 8th of May, 1990 vide Registered Post Office Receipt No. 2370, dated 18th of April, 1990. However, the appellant neither cared to send any reply nor put in appearance. A presumption of the notice having been duly served would thus be legitimate and the appellant must be deemed to be aware of the proceedings, unless he conclusively rebutted the same. Nevertheless, as a matter of abundant caution and indeed as a pure concession the Forum issued a second notice on the 22nd May, 1990 for the 13th June, 1990, but again without any effect. THE third notice was issued on the 14th of June, 1990 for the 28th June, 1990. It would manifestly appear that the appellant was aware of the proceedings because meanwhile they forwarded a letter dated 13th June, 1990 which was received in the Forum office on the 28th June, 1990 and was treated as a reply version. A reference to this letter would clearly indicate that the appellant stood duly served and was fully aware of the proceedings and instead of contesting the complaint had chosen to write a cryptic letter requesting that the same should be dismissed forthwith. It is common ground that thereafter, the appellant non-chalantly ignored the proceedings and did not appear before the Forum in person or through an authorised representative or counsel. This left no alternative to the Forum but to proceed ex parte against them and relying on the uncontested case of the complainant, the order in his favour was recorded. We are clearly of the view that herein indeed more than ample opportunities have been afforded to the appellant and they had no one else but themselves to blame for not contesting the case before the District Forum. THE exparte proceedings were thus wholly justified and the decision on merits is beyond the pale of challenge. Learned counsel for the appellant then submitted that this concern is the authorised dealer of M/s. Hero Honda Motors Limited, who are the manufacturers of the motor cycle. It is they who warrant that under normal use the product is free from any defect both in material and workmanship subject to certain conditions of the guarantee given by this manufacturer. It was highlighted that M/s. Hero Honda Motors Limited had not been impleaded along with the appellant as a party in the complaint counsel contended that as a matter of pure law the original manufacturer is a necessary party in this context and because of its non-joinder the complaint would not be maintainable and should have been dismissed on that score at the very threshold.

WE regret our inability to agree with the aforesaid submission which has been vehemently pressed. Reference to the larger scheme of the Consumer Protection Act, 1986. (hereinafter referred to as the Act) and in particular to Section 2 thereof would indicate that a complaint inter alia may be made by a consumer of goods or services. Clause (c) (1) of sub- section 1 of the aforesaid section then defines a ''consumer'' of goods as a person who buys any goods for consideration, which has been paid or promised or partly paid and partly promised etc. The term ''trader'' for the purpose of the Act has been defined in Clause ''q'' of Sub-section (1) as follows : "trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;"

When the aforesaid definition is read in the light of the definitions of a ''complainant'' in Clause ''b'' and of a ''complaint'' in Clause ''c'' along with that of a ''consumer'' of goods, it would seem manifest that the basic privity of contract is between the consumer who has bought the goods for consideration etc. and the trader who has sold them to him either as a seller or a distributor thereof. As in the context of the present case. the primal grievance of the complainant herein would be against the trader only on the ground that the goods supplied by him suffer from one or more defects as defined in Cause T of Sub-section (1) of Section 2. Plainly enough the privity of contract and the relief claimed is against the trader, he the seller or the distributor of the goods. Indeed one can visualise a situation where the purchaser of goods may not even be aware of who the original manufacturer thereof is. The trader alone is thus the primal and necessary party in a complaint of this nature against whom indeed the various reliefs envisaged by the act of the Rules may be claimed. It then deserves notice that the ''manufacturer'' of goods has been separately defined by the statute, in Clause ''J'' of Sub-section (1) of Section 2. It is unnecessary to notice that exhaustive definition in extenso, but it plainly includes the person who makes or manufactures any goods or part thereof. It is nowhere laid down either in the Act or the Rules framed, thereunder that whenever a trader is proceeded against under the statute, original manufacturer of the goods must be also traced and necessarily made a party along with him. Counsel could not draw our attention to any provisions which expressly mandated such a procedure, nor any precedent could be cited in support of his stand, merely because a complainant may sometime by his own volition chose to implead the original manufacturer of goods also, is no ground for holding that a complaint cannot be proceeded against the trader alone. It is well settled that a necessary party is that in whose absence the Court cannot pass an effective decree. At the very highest the original manufacturer of goods can be a proper party in this context. Merely because the manufacturer may be a possible party is no ground for holding in the reverse that he is a necessary party whose non-joinder would be fatal to the whole proceedings.

APART form the above it has to be noticed that the Consumer Protection Act is a beneficient statute recently enacted for the better protection of the interests of consumers. It is not to be shackled with the intricacies and niceties and technicalities of civil procedure. The proceedings under the Act are primarily simple and summary in their nature. The provisions of the Civil Procedure Code are not applicable to the proceedings barring some which have been expressly made relevant specifically by the Acts or the Rules framed thereunder. Consequently Order 1 of the C.P.C. in general and Rule 9 thereof in particular are not attracted. The higher technicalities of who is a necessary, proper or possible party are not things easily interjected into the proceedings under this Act. The concept of the dismissal of a complaint because of a non-joinder of what may at the highest be a proper party would to our mind be alien to the spirit of this beneficent Act. This is the more, so when the objection with regard to the party was not raised before the District Forum. It is well settled that even when attracted the plea of non-joinder must be raised at the earliest opportunity and the party raising the plea must specifically state the person who should or ought to be impleaded. If such an objection of non-joinder is not raised at an early stage in the eye of law, it is also deemed to have been waived. Herein at the appellate stage, we are reluctant to entertain an objection of this nature.

WE would, therefore, conclude that the original manufacturer is not a necessary party in a complaint against the trader for the supply of defective goods. The primal submission of the learned counsel in this regard must, therefore, be rejected. The last contention of the learned counsel was that the District Forum had erred gravely in not complying with the mandatory provisions of Causes ''c'' and ''g'' of Sub-section (1) of Section 13 of the Act. Elaborating the argument, it was submitted that without exception a defect in the goods can only be established by a proper analysis or test of the goods and under the aforementioned provisions the District Forum was bound to refer the matter to an appropriate laboratory and thereafter the objection of the parties to the report of the laboratory had to be invited and after hearing the matter be decided upon. This having obviously been not done, counsel submitted that as a matter of law the findings of the goods being defective could not be given or sustained in violation of the allegedly mandatory procedure laid down by the Act.

Whilst the aforesaid contention might bring some credit to the ingenuity of the learned counsel, it is nevertheless wholly untenable in our view. This submission seems to lose side of the larger scheme of Section 13 which clearly envisages goods which are amenable to chemically test and analysis on the one hand and those which are not so on the other. In assence the appellant stand is that the defective goods of whatever nature must be referred to an appropriate laboratory for analysis and test. However, this would be plainly contrary to the scheme of Section 13 wherein Sub-section (1) pertains to goods which are capable for analysis or test in a laboratory and Sub-section (2) which specifically raised to goods in respect to which such a procedure cannot be followed. A bare reference to the relevant part of clause ''c'' on which basic reliance was placed by Mr. Lakhanpal reads as follows:- "Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the same to the appropriate laboratory."

NOW a close perusal of the aforesaid provisions would indicate that this procedure is to be followed in a case where without proper analysis or test by a laboratory the defect in the goods cannot be determined. Can it for moment be said that vehicle like a motor cycle has to be submitted for an analysis or test thereof by a laboratory? I think on plain principle the answer to this question has to be rendered in the negative. Clause ''c'' aforesaid, therefore, envisages only those kinds of goods which can be the subject of chemical analysis or test in a laboratory for determining the defects therein. Clearly enough as regards goods in respect of which such a procedure cannot be followed are not to be sent to any laboratory and are governed by Sub-section (2) of Section 13. Reference may, therefore, be made to the aforesaid provision which reads as follows : "The District Forum shall, if the complaint received by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services".

Viewing sub-sections (1) and of Section 13 in a broader perspective, it seems plain that the law makers clearly contemplated two kinds of goods; namely those which are amenable to proper analysis or lest in a laboratory and others winch are not so. As regards the first the procedure prescribed is under Sub-section (1) mandating a reference to an appropriate laboratory. The other class is governed by Sub-section (2) for which a different procedure is prescribed without any reference to such a laboratory. Consequently, Clauses ''c'' to ''g'' of Sub-section (1) are attracted only in cases which cannot be determined except by a proper analysis or test thereof in a laboratory. They have no relevance to goods with regard to which such a procedure cannot be followed and consequently come under the ambit of sub- section (2). Plainly enough in the present case a motor cycle is not to be chemically analysed and tested and the only procedure in the goods of alleged defects therein is governed by Sub- section (2) of Section 13. This the District Forum has duly adhered to. We may further mention that no judgment or authority could be cited in support of the proposition mooted on behalf of the appellant. The learned counsel contention that Clauses ''c'' to ''g'' of Sub-section (1) of Section 13 were applicable in the present case is thus without merits.

IN the light of the above, we are inclined to hold that all defective goods irrespective of their nature are not to be referred to an appropriate laboratory for analysis and test. Only those which are amenable to such a procedure are to be sent to an appropriate laboratory and the remaining categories of goods are governed only by the provisions of Sub- section (2) of Section 13 of the Act All the submissions of the learned counsel for the appellant consequently fail and for the reasons aforesaid the appeal is without merit and is hereby dismissed. As no appearance has been put in on behalf of the respondent we do not burden the appellant with any costs. Appeal dismissed.