Ramchandra Pandurang Kashid vs Automotive Manufactures Pvt. Ltd

These revision petitions have been filed by the petitioner, Ramchandra Pandurang Kashid against the order dated 10.07.2015 passed by the State Consumer Disputes Redressal Commission Maharashtra, Mumbai (in short 'the State Commission') in First Appeal Nos. A/13/216 & A/13/226.

Brief facts of the case are that after deliberations and negotiations, the respondent no.2 sold truck model No.2513 IL costing Rs.14,10,000/- to the petitioner of which possession was taken by him on 2.4.2011. Respondent no.2 is the dealer of respondent no.1 who is the manufacturer of the truck. Thereafter petitioner built a body on the truck spending an amount of Rs.3,00,000/- and ultimately after making it road worthy the truck was brought on road. However, when the truck was put in use the petitioner found that the front wheel hub of the truck was getting over heated. As such he was advised to approach the respondent no.2. Accordingly, on 13.6.2011, the petitioner took the truck to respondent no.2 with a complaint of front wheel hub heating. At that time the truck had travelled the distance of 10595 kms. But instead of rectifying the problem pointed out by the petitioner, the respondent no.2 carried out some basic servicing and repair work for which they also charged the petitioner. The problem persisted even after the truck ran over 15500 kms. only and in these circumstances the petitioner again took the truck on 18.8.2011, for servicing to respondent no.2 but, the problem of hub heating persisted. Thereafter, on 2.9.2011, 23.2.2012, 11.4.2012 & 3.5.2012 the truck was time and again taken to the workshop of respondent no.2 pointing out that the front wheel hub was getting heated up after travelling for short distances also and there seems to be some manufacturing defect in the truck. On 5.5.2012 despite the repeated complaints made by the petitioner, the respondents did not rectify the problem in the truck as a consequence of which, the petitioner refused to take the delivery of the truck.

On 23.5.2012, the petitioner through his advocate issued a legal notice to the respondents pointing out the defects in the truck and the consequential economic loss sustained by him for which he requested them to make good the loss sustained by him. On 23.6.2012 the said legal notice was replied by respondent no.2 refuting the averments raised therein. In these circumstances, on 30.7.2012 the petitioner filed the complaint no. CC/12/207 before the District Forum Solapur contending that there was a manufacturing defect in the truck and that he was required to spend an amount for change of oil and purchase of material, etc. for the truck. It was further contended that normally a truck travels distance over 1,00,000 kms. over a year but because of problem of front wheel hub heating, truck in question could not travel over 60000 kms. thereby, petitioner sustained loss of income. Accordingly, the petitioner alleged that there was a manufacturing defect in the truck and in view of the alleged deficiency in service on the part of both the respondents, they were liable to make good the loss of Rs.17 lakhs, together with interest @ 9% p.a. and/or provide the petitioner a new truck and compensation for mental agony etc. Alongwith the said complaint the petitioner also filed the affidavit of one Shri Sanjay Ashok Pawar who has been stated to be an Engineer to substantiate his contention regarding the manufacturing defect in the vehicle. Reply was filed on behalf of respondent no.1 herein opposing the relief claimed in the consumer complaint. Vide order dated 29.4.2013 the District Forum , Solapur allowed the Consumer Complaint No.CC/12/2007 filed by the petitioner herein by directing the respondents jointly to pay a sum of Rs.2,000/- per day from 3.5.2012 as compensation for physical, mental and economic loss. In 2013, being aggrieved by the aforesaid order, Appeal No.A/13/2016 & Appeal No.A/13/226 were filed by respondent no.2 & respondent no.1 respectively before the State Commission. The State Commission allowed the appeals and dismissed the complaint.

Hence, the present revision petitions.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner/complainant stated that right from the initial date of purchase, the front wheel hub of the truck was getting overheated, therefore, the petitioner could not get the correct mileage and the consumption of the fuel was also more. The truck was taken to the workshop of dealer/respondent no.2 on 13.6.2011. The defects continued and therefore, the vehicle was again taken to the workshop on 18.8.2011 but the defects still persisted. The vehicle was again taken to the workshop on 2.9.2011, 23.2.2012, 11.4.2012 and finally on 3.5.2012 when it was left with the garage of respondent no.2. Though the vehicle was examined by the expert of respondent no.1, however no report has come on record. The complainant then issued a legal notice on 11.5.2012. Later, on 30.7.2012 the consumer complaint was filed. Learned counsel for the petitioner argued that the OPs have accepted as per warranty clause that the defective part is to be either repaired or to be replaced. However, in the present case, the defects were not fully repaired and the defective part was also not replaced. Therefore, the OPs are deficient in their service so far as it relates to warranty extended by the manufacturer of the vehicle. No expert opinion was sought by the District Forum. However, complainant has produced an affidavit of one Mr. Sanjay Ashok Pawar who is an engineer in support of his contentions. The State Commission should have remanded the matter to the District Forum for appointing an expert in the matter, because the State Commission dismissed the complaint on the ground that there was no expert report in the matter and the complainant has filed this complaint only to get huge compensation or to get a new truck. The fact is that the complainant was not getting the right mileage and therefore was incurring losses in the operation of truck. The truck is still lying with the dealer as they have not repaired the truck under the warranty. Learned counsel for the petitioner further stated that on the job cards on 13.6.2011 the defects mentioned are; (1) Low pick up (2) Front both linner, Hub more Heat (3) Check wheel alignment (4) Front wheel hub greasing. Thus, it is clear that as early as on 13.6.2011 the defect of front wheel hub heating was reported and by that time the vehicle had run only 10595 kms. Thus, it is clear that the problem of heating of front wheel hub was present right from the initial stage on driving of the truck. It was further stated that the truck was purchased for his subsistence and the same is mentioned in the complaint.

Learned counsel for OP-1, manufacturer stated that the petitioner/complainant is not a consumer as he has mentioned in the complaint itself that the truck was purchased for business purpose. it was further argued that in the job cards, the defect of front wheel hub heating is not mentioned. The fact is that this defect was only stated later on and that is why the State Commission has concluded that in the garb of manufacturing defect, the complainant wants to have huge compensation or new truck. It was alleged that there was actually no defect in the truck and the truck was running perfectly well and therefore there was nothing to repair. To prove any manufacturing defect, an expert opinion is a must and the District Forum should have ordered the vehicle to be inspected by some expert. Moreover, without any expert opinion, the District Forum has allowed the complaint and ordered huge compensation of Rs.2,000/- per day. This was a totally unjust order and that is why the State Commission allowed the appeal preferred by respondent no.1 and dismissed the complaint.

The learned counsel for respondent no.2/ stated that he supports the contention of the learned counsel for the respondent no.1/Manufacturer that the complainant is not a consumer as he has not purchased this truck for earning livelihood by means of self employment. This is proved from the fact that he is maintaining his family even without the truck as he has left the truck in the garage since May, 2012. During one of the free services, the defect was brought to the notice of the dealer when the vehicle had already run about 45000 kms. Before this, no mention was made of the heating of the front wheel hub of the truck, as would be evident from the job cards. It was further stated by learned counsel that when the vehicle was brought on 2.9.2011 to the workshop, there was no mention of heating of front wheel hub and only the works to be done were mentioned; (1) Clutch to be checked, (2) Poor pick up and average (3) Combination Lamp to be checked. It was contended that if it was a manufacturing defect, it should have been reported in the job cards. The so called expert opinion of Mr. Sanjay Ashok Pawar cannot be accepted because he has only mentioned the defect and no cause or reason for the same has been given.

I have given a thoughtful consideration to the arguments advanced by learned counsel for the parties and have examined the record.

The vehicle in question was under warranty when the defect was reported to respondent no.2. Though respondent no.2 has contended that in the job card dated 2.9.2011, no defect of front wheel hub overheating was reported but the fact is that even before this when the vehicle was brought to respondent no.2 on 13.6.2011, the defect of front wheel hub heating was mentioned as a work to be done. This means that the defect of front wheel hub overheating was there right from the very beginning of the purchase of the truck. The Ops are admitting that this defect was reported when the vehicle had run about 45000 kms. But the fact is that when it was first reported on 13.6.2011, the vehicle had run only about 10500 kms. It means that even if the defect was not reported in between, it seems that the defect was there when the vehicle had run only 10500 kms. and again when it had run 45000 kms. Thus, the persistence of the defect cannot be ruled out. As the vehicle was covered under warranty, the OPs were responsible for removing the defect either by repairing or by changing the parts. Nothing was done by the OPs. No reason has been advanced by the OPs for not honouring the warranty for removal of defects.

So far as the question of expert opinion is concerned, first of all the respondent no.1 is a known manufacturer of such vehicles and the vehicle was examined by some expert of OPs, however that report has not come on record. Both the parties have stated that the District Forum should have appointed an expert in the matter. So far as the complainant is concerned, he has filed a report of one Engineer Mr. Sanjay Ashok Pawar but the OPs could have also requested the District Forum to appoint an expert in the matter. However, it seems that no such application was moved before the District Forum. The question is that there is no expert report and a defect has been alleged in the vehicle, which also finds mention in the job card dated 13.6.2011 as well as in subsequent job card, then whether it was not the duty of the OPs to have rectified this defect or should have given some satisfactory answer to the complainant in respect of this defect. It is not clear from the record whether respondent no.2 made any correspondence with the complainant when the truck was left with respondent no.2 on 3.5.2012. Obviously, the complainant has purchased the truck and he is entitled to use the truck for his advantage.

The objection raised by the OPs in respect of the complainant not being a consumer is not sustainable because the complainant had mentioned in the complaint that the truck was being used for his subsistence. The subsistence can only be insured if the person earns his livelihood by means of that truck. There is no other evidence filed by the OPs that he had a fleet of trucks or other means of employment for earning livelihood. The only argument that has been advanced by the OPs in this regard is that even after leaving the truck at the workshop since 2012, he is running his family. This argument is devoid of any merit because a person would resort to some other means for earning livelihood if one means of earning livelihood is not available to him. The use of word "Business" mentioned in the complaint does not specify any commercial purpose because the truck is such a vehicle which can only be used for hire and reward and therefore, it will constitute business. The Hon'ble Supreme Court in a recent judgment in Paramount Digital Color lab and others etc. vs. Agfa India Pvt. Ltd. and others etc., III(2018) CPJ 12 (SC), has observed as under:

"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than "self-employment".

Therefore, the point to be considered is whether the appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion."

In the present case also there is nothing to show that petitioner wanted to use the truck in question for the purposes other than self-employment for earning his livelihood. Thus, in the light of the above judgment, the complainant would be deemed to be a consumer in the present case.

In view of the above, in the facts and circumstances of the case, it is clear that the OPs did not honour the warranty and no reason was specified for the same. Hence, the OPs were deficient in their services. The observation of the State Commission that the complainant wanted to get huge compensation or replacement of a new truck does not appeal as the truck in question was itself a new truck. In these circumstances, I am of the view that the State Commission has grossly erred in not providing any relief to the complainant. However, it is also seen that the compensation granted by the District Forum was unproportionately high and the same cannot be sustained.

Consequently, in the facts and circumstances of the case, it is now ordered that the OPs will repair the defects in the truck to make it roadworthy and after doing the requisite repairs (except tubes and tyres, for which the complainant will have to pay if replacement or repair is required) to the satisfaction of the complainant will handover the repaired truck to the complainant within a period of one month from the date of receipt of this order under warranty without charging any money . If complainant is not satisfied with the repairs, he can approach the District Forum for vehicle to be inspected by any expert and similarly, if the OPs are not satisfied and feel that complainant is unnecessarily pointing out defects, they can also approach the District Forum for appointing an expert in the matter. Apart from making the truck roadworthy, the OPs shall also pay jointly and severally a compensation of Rs.75,000/- (Rupees Seventy Five Thousand only) to the complainant for loss of income and non-use of truck and Rs.10,000/- towards cost of litigation. Compensation and cost will also be paid within a period of 45 days from the date of receipt of this order.

The revision petition nos.2586-2587 of 2015 are accordingly allowed in terms of the above order and the order dated 10.07.2015 of the State Commission is set aside and order dated 29.4.2013 of the District Forum stands modified.