JALAUDDIN YUSUFLALI vs MANAGER

THE complainant is father of the deceased Maksus J. Tirmizi who had died on account of falling from the scooter. It is alleged that the deceased was driving the Narmada Prince 150 Scooter on 14.7.1990 between 12.30. a.m. and 1 a.m, on Khamasa road, Ahmedabad and on account of breaking of the rear axle of the wheel and loosening of the bolt the rear wheel came out and the deceased was thrown on the ground and some passers-by who saw the accident, took Maksus to the V.S. Municipal Hospital which is hardly 1 km. away from the place of accident where Maksus died on account of brain haemorrhage etc After 11/2 hrs. THE police made panchnama, bolt of the deceased and the scooter and took possession of the scooter and wheel which was dislocated from the rear end. THE post mortem has also been done which also shows that the death was due to brain haemorrhage on account of scooter accident. Various statements have been recorded by the police which clearly show that the accident took place on account of breakage of the axle of the rear wheel, loosening of the bolt and wheel having been dislocated; the driver was thrown on the ground resulting into brain haemorrhage.

THE complainant has alleged that there was a manufacturing defect in the rear axle of the scooter and also on account of the defect in the rear wheel, the wheel was dislocated and on that account, Maksus met with an accident and died. It is an admitted position that the opposite party could not sell the scooters and has become a sick unit. Some newspaper reports have also been produced to show that the scooters could not be sold and were lying with the company and the reason, according to the complainant is that though there was acute scarcity of scooters, this particular brand of scooters could not be sold and one of the reasons is the quality of the scooter and technical defect. THE complainant has produced a copy of the invoice from which it appears that the scooter was directly purchased from Gujarat Narmada Auto Ltd. by the invoice dated 31.1.90: But according to the complainant on payment of cash the same was delivered on 7.2.90 to which there is no dispute. According to the complainant the scooter was brand new scooter purchased on 7.2.90 and within six months of its delivery, the rear axle of the scooter gave way resulting into dislocation of the rear wheel and on account of this, the son of the complainant was thrown on the ground and died on account of brain haemorrhage. The scooter is meant for carrying two passengers. But at time of the accident the driver alone was driving the scooter without any extra luggage which means that when the scooter met with this accident, it was carrying only the driver. There can neither be any traffic at this hour of night nor mere is any question of heat or any other thing. It is not even the case or suggestion that he had to apply the brakes to save either a human being or any other obstacle. Police has recorded the statement where it has not been shown that the scooter has collided with any other object or that the driver had applied the brake forcefully or that there was any external jerk which had resulted into the breakage of the axle.

The evidence produced before us and the police papers including the panchnama of the scooter and the wheel lead us to the only conclusion that the deceased was driving the scooter in the heart of the city in absence of any traffic and without any extra luggage or any pillion rider met with his death only on account of breaking of the axle, loosening of the wheel and the driver was thrown on the ground and died. We may bear one thing in mind that (1) at the time when this accident happened, there was no traffic and, therefore, no reason to apply brake, (2) no obstacle on the road, (3) the scooter was new, purchased before 6 months and within the period of guarantee. At the time when this incident happened, the deceased was taken to the hospital by other persons, police made panchnama of the deceased, scooter and the wheel and they took possession of the scooter as well as the wheel since there was a police case. The post-mortem was also done of the dead body. This was a severe shock to the father of the deceased particularly when the deceased was hardly 26 years of age and was an earning member drawing salary exceeding Rs. 2000/-. He was possessing diploma in Mechanical Engineering and potential good earner. We can imagine the agony of the father when a son expires not because of any accident or collision with other vehicle but on account of failure of the vehicle.

NOTICE was served to the opposite party, claiming compensation for the loss on account of accident of his son but the opponent repudiated the claim and hence this complaint has been filed. In response to our summons, the opponent has filed its version and denied the averments and allegations of the complainant. The opponent has fought the case tooth and nail instead of showing any compassion or respect for truth. The company has taken various technical contentions, rightly or wrongly, even to the extent of saying that it was not a brand new scooter and has also taken objections at various stages. The disputed axle was brought to the office of the Commission for inspection of the other side and thereafter the same was sent to Metallurgical Laboratory for analysis first to Pune and then at Ahmedabad. There after enquiry was made at Baroda and ultimately the axle was sent to Bombay for analysis. We are deeply pained to say that the Metallurgical Laboratories were quoting very high rates for analysis which ordinarily a complainant might not be able to pay. We had, therefore, suggested the company to contribute but the company refused to contribute anything and ultimately, the part was sent to the laboratory at Bombay and the Laboratory had charged Rs. 2000/-. The only anxiety of the Laboratory was that nobody should be called for evidence. In this way the process has taken a considerable time. In the meantime the company had approached the Hon. National Commission in revision and we had waited till the disposal of the Revision Application because the learned Solicitor appearing on behalf of the company has raised the following contentions: - 1. the complainant is not a consumer; 2. the complaint is not maintainable in the eye of law; 3. the complaint is not valid; 4. that there is no privity between the complainant and the company; 5. that there was no guarantee for the scooter; 6. that the complaint involves disputed questions of fact and law and should be tried by Civil Court.

That these are in the nature of preliminary contentions and on merits Mr. Chhatrapati, the learned Solicitor appearing for the opponent has argued that the accident is the result of: 1. lack of proper maintenance; 2. negligence of the driver (deceased); 3. the scooter was sold on concession and, therefore, not brand new; 4. that in view of Rule 4, the report of the Laboratory cannot be accepted and the learned Solicitor has relied on the case of Voluntary Organisation in the interest of Consumer Education (VOICE) and Ors. v. M/s. Maruti Udyog Limited and Ors. reported in 1991 CPR P 523.

We will deal first with the preliminary contention of Mr. Chhatrapati in which we do not find any merits at all. Admittedly, the scooter has been purchased by the deceased directly from the company. The invoice is not disputed. The original purchaser having expired, cannot bring any complaint and, therefore, the complaint has been brought, admittedly, by father of deceased. The arguments of Mr. Chhatrapati that he being Mohamedan, there are other heirs also and, therefore, father alone cannot bring the complaint. We are not impressed by the arguments of Mr. Chhatrapati. Father has a right to bring the complaint being a beneficiary who has taken possession of the scooter from the police also. If there are other heirs, they can claim the amount of compensation from the father but that does not mean that the beneficiary of the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. On this ground only Mr. Chhatrapti argues that the complaint is not maintainable and /or same is not valid. We, therefore, reject that contention. Next contention is that there is no privity of contract between the complainant and the company. Obviously there cannot be, because the purchaser has already died and, therefore, right to sue vests with the beneficiary. Again, it may be true that the definition of trader is very wide to include manufacturer also. Even if the scooter selling agency is not a manufacturer, the complainant can always join the manufacturer on account of expanded definition of word "trader". Therefore, according to our opinion father of the deceased is a consumer and has ample right to file this complaint. In this respect the complainant relies upon the decision in the case of Punjab National Bank v. K. B. Shetty reported in II (1991) CPJ 639 (NC). In this case the locker was rented by the wife. The ornaments which were put in the locker were stolen and locker was found open. The contention was raised by the opposite party that the ornaments belonged to the wife and husband has no right to file a complaint. Said contention was rejected by the Hon. National Commission. The same principle is also applicable in the present case. Lastly, Mr. Chhatrapati submitted that the case involves disputed questions of facts and law and, therefore, should not be tried by this Commission and should be referred to the Civil Court. We cannot accept this argument for the simple reason because the case has taken very along time, all affidavits have been filed, and is already argued and the complainant has spent about Rs 2000. /- for obtaining the metallurgical report. The decision in the case of Janata Machine Tools was not followed by the Hon. National Commission itself and it has been held in so many cases by the Hon. National Commission that it is the duty of the Consumer Fora to hear the complaint on merits even by taking oral evidence. In the case of Sharadaben and Ors. v. Gujarat Gas Suppliers & Ors. reported in 1991 (2) CPR 399 which was decided by us, we observed that the "complaint requiring elaborate inquiry including the task of recording voluminous oral evidence and the leading of expert''s evidence, as also the technical examination of the LP Gas Cylinder and Regulator. All this could be properly done and gone into by the regular Civil Court and not by a Consumer Redressal Agency." However, this judgment has been reversed by the Hon. National Commission in First Appeal No. 137 of 1991 decided on 28.1.1992 reported in Consumer law Cases - P. 274 wherein the Hon. National Commission has reiterated the observations made by it in the case of S.K. Abdul Sukur v. State of Orissa and Ors. as under: "The mere fact that witnesses may have to be examined and their cross-examination may also be necessary is not by itself a valid ground for refusing adjudication of the dispute before the Redressal Forums constituted under the Consumer Protection Act. It is to be remembered that the very purpose for which the statute has to be enacted is to provide a cheap and speedy remedy to aggrieved consumers by way of an alternative to the time consuming and expensive process of civil litigation. If jurisdiction is declined by the Special Redressal Forums set up under the Act in all such cases on the mere ground that examination and cross-examination of witnesses would be necessary, it would amount to unjust denial of the benefits of the Act to the aggrieved consumer by erroneous exercise of its jurisdiction by the Forums."

AGAIN, in this case, evidence has been taken and the opposite party has sought several adjournments which, has prolonged the litigation and it is now of no use to relegate the parties to the Civil Court. We, therefore, reject the contention of Mr. Chhatrapati. On facts, Mr. Chhatrapati has submitted that the accident had occurred not on account of any defect in the scooter but on account of bad maintenance and fault of the rider. He further submitted that this is a solitary case. If the defect has been there, other accidents would have been there. We regret in stating that this is not a solitary case. Before us only there was another ease of the same type involving the same brand of scooter. In Appeal No. 209 /93 the facts are totally similar to the facts of the present case in which the brand new scooter was purchased and within three months the axle was broken. Fortunately, the rider did not suffer major injuries. It also shows that the manufacturing of the axle appears to be defective. The opposite party has always resisted the metallurgical analysis of the axle and has raised several objections and made applications from time to time to delay the proceedings. Even the laboratories have remained indifferent and the complainant was sent from pillar to post and ultimately Indian Institute of Technology, Bombay had done the test and sent the detailed report. We are satisfied that the report definitely helps the complainant. The very facts of the case and the accident itself suggest that the axle has been broken without any external force which has resulted in the death of the rider. In such a circumstance, the company ought to have taken a liberal view and compensated the complainant. Instead of that the opposite party has tried to delay the matter and in such a circumstance we are convinced that the deterrent damages should be awarded but the complainant has demanded a very low amount which we are not inclined to exceed. We are fully convinced that the accident is the result of the defective manufacturing of the axle with the result the rider had suffered injuries and died. The complainant is, therefore, entitled to the full damages prayed for in the complaint. The opposite party shall also pay interest @ 18% p.a. after two months from the date of the accident till full payment is made and pay the cost which we quantify at Rs. 3000/-. ORDER The opposite party is directed to pay Rs. 1,40,000/- to the complainant with interest @ 18% p.a. after two months from the date of the accident till the payment is made. The opposite party shall also pay Rs. 3000/- towards the cost of the complaint. The payment shall be made within 4 weeks from the date of receipt of the order. Complaint allowed.