PAWAN MOTORS vs JAMNA SHARMA

THIS is an appeal against the order dated 12.6.2003 passed by the District Forum, Hardwar whereby the appellant was directed to refund the price of the vehicle to the complainant along with compensation and cost of litigation.

THE brief facts of the case are that the complainant Ms. Jamna Sharma purchased a 3G Moped from opposite party No. 1, while opposite party Nos. 2 and 3 are Manufacturer and Marketing General Manager of the company. THE purchase was made on 18.3.2000. THE warranty period was for one and half years. THE complaint has been filed on 19.1.2002 and the vehicle is permanently in use of the complainant. She has alleged that there were manufacturing defects from the very time of purchase. THE pick up was not proper, silencer was defective and it always troubled in starting. THE engine used to make noise and there was bubbling. It consumed high petrol. THE complainant was assured by the appellant that the defects shall be removed after servicing but they have never been removed, therefore, the complainant filed the complaint for the refund of the price after taking the vehicle. The opposite party filed written statement and alleged that the complainant has got no driving licence. She has got no experience of driving the vehicle. There was no manufacturing defect and whenever any minor defect was found, it was removed at the time of servicing. It is alleged that a service engineer was sent at the house of the complainant. He removed all the defects and on being satisfied, the complainant herself endorsed about her satisfaction.

After taking the evidence of the parties, the learned Forum allowed the complaint for the refund of the price along with compensation of Rs. 5,000/- (Rupees five thousand) and cost of litigation of Rs. 1,000/- (Rupees one thousand), against which order the present appeal has been filed.

WE have heard the learned Counsels for the parties and gone through the records. The sale is admitted. The date of sale is admitted. The warranty period is also admitted. The vehicle was sent for servicing, the servicing is also admitted. Now the main question is whether there was any manufacturing defect. It is nowhere said in the complaint that the complainant is a mechanic or an automobile engineer or an expert in this trade. She is a lawyer by profession and as stated and also admitted by the complainant, she has not even got a driving licence. This is altogether a different thing. Whether a person can drive the vehicle without a licence or not but at least it is clear that if there is no driving licence, howsoever expert the complainant may be, she cannot be presumed to be an expert or even to have learnt driving. Even if after driving the vehicle for 3 or 4 years, she applies for a driving licence, she shall first be issued learning licence and then regular driving licence. She shall be presumed under law to be below the learner as well at least she is not an expert. She did not say anywhere that the vehicle was being driven by somebody else and she was only the owner and had purchased it for other purposes. It can also be presumed that if a layman or a person not holding licence drives the vehicle, he will use it roughly. There is no evidence from the side of the complainant that she has not used it roughly. It cannot be said that merely because she is an expert driver even without licence, she never used the Moped roughly. There is also no evidence of any other expert to show that there was any manufacturing defect. The only job cards at the time of the servicing have been produced wherein ring, piston, sound, pickup, etc. has been written. This is the ordinary defect in every small vehicle and when the customer comes to be workshop even without examination, the mechanic records the complaints and the vehicle is taken care of accordingly. It was argued by the learned Counsel for the complainant that nowhere in job card, it is written by the company that the defect has been permanently removed. Conversely it can be argued that in no job card, it is written that the defects have not been removed even at the time of taking out of the vehicle from the workshop after service. Not only this when the engineer was appointed, he came and he recorded customer satisfaction note. The defects were removed. We have already said above that the complainant is not a layman, she is a lawyer by profession. She knows English and there is specific customer satisfaction note that, "This is to certify that my Moped has been attended for all complaints that I had reported and I am fully satisfied with the job done". We lay emphasis on the words ALL COMPLAINTS and also on FULLY SATISFIED. After this there remains nothing. Not only this, there is also an endorsement in Hindi that, "Aaj dinank 9.6.2001 ko maine apnee gadi Sree Sandeep Kumar ji se theek karayee." There remains nothing after 9.6.2001 although the purchase was made on 18.3.2000. This will show that there was no deficiency in service of the dealer. There is specific case of the appellant that nothing was charged at least there is no counter case of the complainant that she had paid any amount for this job. We do not want to go into other aspects of the case. The complainant was not entitled to drive the vehicle because there is necessity of driving licence for driving any two-wheeler beyond 50 cc and if she was driving the vehicle without any driving licence, she was doing unlawful act and it is settled principle of law that any judicial authority will not give any protection to any unlawful act.

THE learned Counsel for the complainant referred the rulings reported in I (2003) CPJ 69 (NC)=2002 (3) AWC 4,215 (NC), Krishan Kumar v. Raheja Automobiles and Another; 1993 CPC page 601, Vikram Singh v. M/s. Sipani Automobiles Ltd.; 1995 (1) CPR page 67, Shiv Prakash Sharma and Others v. Auto Agric Industries Pvt. Ltd. and Another; I (1995) CPJ 349, Bajaj Auto Ltd. v. A.V.K. Nair and decision of this Commission in Appeal No. 289/2002, H.C.L. Ltd. v. Balbir Singh; III (1993) CPJ 275 (NC)=X-1993 (3) CPR 274, M/s. Hindustan Motors Ltd. and Others v. Rajendra Kumar Ganeshbai Prajapati and Others; III (2003) CPJ 567=2003 (3) CPR 450, Sanjay Kumar Aggarwal v. L.M.L. Ltd; and 2003 (2) CPR 435, Bibhuti Bhusan Bansal v. Rajpath Motors and Another. THE facts of all these cases are different from the facts in dispute in this particular case. In all those cases, defects were apparent on the basis of evidence but here the entire case has been tried to be developed on the basis of the job card without any expert evidence but ultimately the defect, if any, has been finally removed as discussed above. The learned Counsel for the appellant referred the ruling reported in II (2003) CPJ 132 (NC), Villinur Associates and Another v. Dhanraj Denis A., wherein the Hon''ble National Commission has held that whenever there were major or minor defects, they were rectified. Manufacturing defect was not proved. The complainant was held to be not entitled to any relief. In the ruling reported in III (2002) CPJ 313 (NC), Sita Ram v. Manager, Harsh Auto Care and Another, manufacturing defect in the scooter was no proved. Whenever there were defects, they were rectified and satisfactory note was given by the complainant. It was held by the National Commission that the complainant was entitled to no relief. In the ruling reported in I (2003) CPJ 244, Keshab Ram Mahato v. Hero Honda Motors Ltd. and Another, there was allegation of manufacturing defect. It was alleged that motorcycle was emanating excessive smoke. It was sent to the workshop on a number of occasions, it was repaired. No expert evidence was produced that bike has any manufacturing defect. The complaint was dismissed.

SIMILARLY in the ruling reported in III (2003) CPJ 385, Ms. Anupriya Sethi v. CMPL Motors Pvt. Ltd. and Others, the facts were highly disputed. There was no expert evidence regarding manufacturing defect. The complainant did not produce his scooter for any examination or testing. It was held that manufacturing defect was not proved. In the ruling reported in II (1995) CPJ 4 (NC)=1995 (1) 211 (NS), M/s. Kinetic Engineering Ltd. v. Milind S. Chaurasia, there was complaint of poor pick up, high petrol consumption. It was held that when proper care was taken the manufacturer or dealer cannot be held liable. In this case driving of a vehicle without proper driving licence amounts to not taking of proper care and, therefore, also the complainant will not get any relief.

IN view of what has been said above, the judgment under appeal shall not be sustained and it is to be quashed. ORDER The appeal is hereby allowed. The judgment and order dated 12.6.2003 is hereby quashed. The complaint is also dismissed. However in the circumstances of the case, cost of the appeal shall be easy. Appeal allowed.