Rakesh Gautam vs Sanghi Brothers Ltd. Bergarh Bhopal

PETITIONER Rakesh Gautam was the complainant before the District Consumer Disputes Redressal Forum, Bhopal, M.P. (District Forum for short). He projected a grievance before the District Forum stating that as an unemployed youth he obtained a loan from the Bhopal Nagrik Sahkari Bank and purchased a Tata 407 Chassis for Rs.3,44,676/- and built a body thereon spending another sum of Rs.1,15,000/-. The vehicle thereafter was registered with the Regional Transport Officer, Bhopal. The petitioner-complainant himself possessed a driving license. Soon, however, he experienced the vehicle giving him trouble; in particular, it was lacking in its pulling power and he had to repeatedly apprise the dealer-respondent no. 1 (M/s Sanghi Brothers Ltd.) about the same. The dealer-respondent no. 1 had conveyed him that the defects being of inherent manufacturing nature, he would be well advised to approach the manufacturer, respondents no. 2 and 3, in the matter. The petitioner-complainant thereafter approached the manufacturer, both at their Regional Office at Indore and Head Office at Mumbai, but of no avail. Finally, the petitioner-complainant was informed on the 30th of July, 1997 that he was free to take legal action.

CONTENDING that because of the defects in the vehicle he was not able to make proper use of the vehicle and earn from its operation resulting in his inability to repay the installments of loan, for which Bank seized the vehicle on 14th of May, 1999; the petitioner filed a complaint before the District Forum. The District Forum, relying upon the report of Shri S.C. Gupta, a mechanical engineer, held that it was a case of manufacturing defect and directed the opposite parties i.e. the dealer and the manufacturer to take back the vehicle and refund Rs.4,59,676/- along with interest @ 12% per annum from the 3rd of January, 1997. It also awarded a cost of Rs.500/- towards the litigation expenses. Aggrieved thereupon, the opposite parties (the respondents herein) filed an appeal before the M.P. State Consumer Disputes Redressal Commission, Bhopal (State Commission for short), who, after hearing the counsel for the parties, while agreeing with the view of the District Forum that there was manufacturing defect in the vehicle, differed with the order of refund of cost of the vehicle with interest and held that the opposite parties/respondents under Section 14 of the Consumer Protection Act, 1986 (the "Act" for short) should first rectify the defects in the vehicle and provide a fresh warranty and only if they fail to fully rectify the defects, then the next step would be to replace the vehicle with a new one of the same model and if that was not possible, only then they would be liable to refund the amount of Rs.4,59,676/- with interest, which the State Commission held should be 6% per annum instead of 12% as ordered by the District Forum.

Aggrieved upon the modification of the District Forum''s order from refund of the cost of the vehicle with 12% interest to rectification of the defects with a fresh warranty, the complainant has filed this revision petition for restoration of the order of District Forum.

WE have heard learned counsel for the parties and have gone through the orders passed by the District Forum as well as the State Commission. Learned counsel for the petitioner-complainant, Mr. Sumit Sarna, Advocate, contends that even though the State Commission concurred with the finding of the District Forum that the vehicle suffered from inherent manufacturing defect but misdirected itself in holding that District Forum was bound to follow the relief it was entitled to order under Section 14(1) of the Act ad seriatim. Section 14(1) of the Act reads as under :- "14. Finding of the District Forum. "(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:

"(a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit; (e) to remove the defects in goods or deficiencies in the services in question; (f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it; (g) not to offer the hazardous goods for sale; (h) to withdraw the hazardous goods from being offered for sale; (ha)to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature; (hb)to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers: Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed; (hc)to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement; (i) to provide for adequate costs to parties."

REFERRING to the portion highlighted, the learned counsel submits that the District Forum was fully within its jurisdiction to choose anyone or more of the reliefs from (a) to (i) of Section 14(1) of the Act and the State Commission patently has gone wrong in holding that the District Forum could first order the opposite parties/respondents to remove the defects and only thereafter proceed to the next alternative to replace the goods and only then order the return of the price of the vehicle. He, therefore, contends that the State Commission has completely misinterpreted the provisions of the power of District Forum under Section 14 of the Act and, therefore, submits that the order of the State Commission be set aside and that of the District Forum be restored. Learned counsel for the opposite parties-respondents though in the written submissions has raised a number of grounds but restricts her argument to the so called defects pointed out by the petitioner-complainant not being manufacturing defects and in that respect she has contended that the affidavit of Mohd. Rafiq, Proprietor of Asia Diesel Workshop, and the report dated 11th June of 2000 of Mr. S.C. Gupta, Mechanical Engineer filed by the petitioner-complainant himself cannot be considered as expert evidence as they are self serving in nature. These reports were prepared without any participation by the respondents/opposite parties or their representatives behind their back and, therefore, cannot be taken to be true. Under the provisions of the Act, it was for the petitioner-complainant to have requested the District Forum to appoint an independent expert to evaluate the condition of the vehicle and only on the basis of such independent expert''s report the District Forum ought to have given any finding. Relying on the judgment of this Commission in the case of Swaraj Mazda Ltd. Vs. P.K. Chakkarpore & Anr. II (2005) CPJ 72 (NC) and Hindustan Motors Ltd. Vs. Smt. P. Vasudeva and Anr. IV (2006) CPJ 167 (NC), the learned counsel contends that it was incumbent upon the District Forum as per Section 13(1)(b) of the Act to have referred the matter for a proper evaluation by an independent expert and in the absence of such a course, he submits that both the fora below have arbitrarily held that the vehicle was suffering from a manufacturing defect. She has further submitted that the fora below also overlooked the fact that the vehicle has been used extensively having covered 99,420 Kms., roughly running the vehicle @ 174 Kms. per day, and the defects pointed out were of general nature, e.g. wearing out of the clutch plate, tool pump, valve, piston ring etc., which occur under normal circumstances when a vehicle is extensively used and in any case as and when they were brought to the notice of the dealer, they were attended to and replaced. Even the so called expert, Mr. S.C. Gupta, refers only to the clutch plate, assembly, tool pump, valve, cylinder, slibs, piston ring etc. which do not constitute manufacturing defect. She, therefore, submits that by any stretch of imagination it could not be said that the vehicle had any manufacturing defect and both the fora below have grossly erred in ordering the replacement/refund of the cost of the vehicle. Having heard the learned counsel for the parties, we are inclined to agree with the submissions made by the learned counsel for the opposite parties-respondents that the vehicle in question suffered only minor defects in the nature of clutch plate, assembly, tool pump, valve, cylinder, slibs, piston ring etc. These cannot be termed as manufacturing defects, specially when the vehicle has been extensively used. The onus was on the petitioner-complainant to prove the manufacturing defects, which he has failed to discharge. The report of the expert (Mr. S.C. Gupta) produced by him does not give details of any manufacturing defects; they are general in nature. Besides, the respondents-opposite parties were not associated in the examination of the vehicle by Shri Gupta if at all it was inspected. The question of replacement of the vehicle or refund of the cost of the vehicle, therefore, does not arise.

AT the time of argument before us, on being questioned, it has been confirmed by the petitioner-complainant that the vehicle soon after its possession by the financier had been repossessed by him. However, considering that the vehicle had to be repeatedly taken to the dealer''s workshop for removing the defects even though minor in nature, we are of the view that the ends of justice will be fully met if the respondents-opposite parties are directed to compensate the petitioner-complainant to the tune of Rs.50,000/- and we order accordingly. The respondents are directed to pay the said sum within a period of two months to the petitioner-complainant, failing which it will attract interest @ 9% per annum till the date of its payment.

THE revision petition accordingly is disposed of in the above terms with no order as to cost.