Rohit Mukherjee& Anr vs Chanchal Banerjee & 6 Ors

The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act') has been filed against the order dated 20.03.2015 of the State Consumer Disputes Redressal Commission, Bihar (for short "the State Commission") in Appeal No.431 of 2009 filed by the Petitioner and Respondent No.2 M/s Indian Auto Machineries (hereinafter called as "the dealer") against the order dated 17.09.2009 of the District Consumer Disputes Redressal Forum, Muzaffarpur (for short "the District Forum") in Complaint No.224 of 2001 of the Respondent no.1 (hereinafter called as "the Complainant").

Brief facts of the case are that after taking loan from Respondent No.3, the Complainant had purchased a three wheeler scooter called Vikram 450'D for his livelihood through the dealer who is the authorised agent of the Petitioner. The vehicle was found defective within a month of purchase. He asked the dealer to repair the vehicle but it was not fully repaired and thereafter, he asked for change of the vehicle which was not done. The Complaint was thereafter filed by him.

The dealer filed its written version before the District Forum. The Petitioner attended the proceedings before the District Forum but did not file any reply and therefore did not contest the claim of the Complainant. The Complainant and the dealer submitted their evidences before the District Forum.

The District Forum after perusing the evidences filed by the Complainant and the dealer held as under:

"3. The complainant on being financed by the Op.No.3 was supplied Vikram 450D three wheeler on 28.02.2001 vide challan Ref.No.15 (Ex.1 A marked bearing Engine No.F659359 Chasis No.002921 but the same was found wrong and false by the Motor Vehicle Inspector, Muzaffarpur. Actual Engine No. was FG59359 (Vide Ext. No.A/1). This fact has been acknowledge by the O.P.No.1 also in para 20 of page 6 of the written statement (portion worked as Ext. A/2) of course after attributing it to human error. Still another paper delivery challan cum invoice dated 28.02.2001 coming from the custody of O.P.No.2 refers engine No.at variance (vide Ext.A/3) cost price wroth valued Rs.80,625/- only. Manufacturing defect in the vehicle since conformingly established, engine and gear box were changed respectively bearing NO.A2E-37552 and M770 (vide letter No.24.09.2002 Ext. A/4) with a request to the complainant through O.P.No.3 to take back the vehicle in question. This journey of which on set date is 28.02.2001 witnessed customer at the earlier on 23.03.2001 when the O.P. No.1 was made aware of it in writing (vide Ext.A/5) followed by earliest dated 20.05.2001 (Ext.A/6) dated 14.06.2001 (Ext.A/7) and dated 30.06.2001 (Ext. A/8), all associated with the deficiency in service rendered by the O.P. No.1. Thus the vehicle in question developed snag within less than a month from the date of sale delivery. IN tentative aforesaid included waiver of loan and interest also for the vehicle remained off the road.

Inbuilt story centres round to correspondences referred to in para two of this order covering interaction btween the complainant and O.P. No.3 on the one hand and O.P. Nos.1 and 2 on the other taking the civil authorities into in stride vide letters dated 15.09.2001 (Ext.AA/6) dated 13.11.2001 (Ext. AA/7), dated 06.02.2002 (Ext.AA/8), dated 11.03.2002 (Ext.AA/9) and dated 02.02.2002 (Ext. AA/10), the last being issued by O.P.NO.1 reiterating to take back the vehicle in question by the complainant. This happened during the pendency of this case and in the considered price on of this forum, it was in bad test because the matter was subjudice before the District Forum a prudence of law equally brought on statutory book by the legislation of the sovereign parliament i.e. the Consumer Protection Act, 1986 (Act 68 of 1968) in short the Act, notwithstanding this fact what is more importantly to be noted is that the vehicle though carrying inherent manufacturing defects was not replaced by new one though vital parts like engine and gear box were replaced vide O.P.No.2 letter dated 14.08.2008 (Ext.B). Supply of vehicle in question to the complainant was a part of show as such staged in hurry as noted by the complainant himself (vide Ext. A/9) and signature thereon (vide Ext.A/10). Omission and Commission has been attributed to the then Executive Officer (O.P.No.3) also who persuaded the complainant to take delivery of the vehicle even without some parts as it was to be demonstrated to the D.M. and D.D.C. and short parts would be supplied later on. It was a step sufficient to frustrate the object of the fund created to promote the interest of the schedule cast community members. This job beyond repairing was attempted to be repaired through a number of letter vide dated 14.12.2001 (Ex.A/11) dated 18.01.2002 (Ext.A/12) and signature (Ext.A/13) dated 19.01.2002 (Ext.A/14) dated 05.02.2002 (Ext.A/15) and dated 12.07.2002 of the Zila Padadhikari (Ext.A/16) written by the officers from bottom to top but all in vain. Petition dated 25.07.2003 of the complainant addressed to the O.P.No.1 (vide Ext.A/17) manifestly clarifies the suffering to which the former was exposed. But all that remained far from solution which is a conclusive proof of recalcitrant attitude of the O.P.Nos.1 and 2 to perceive the fault on their part. This Forum is very much alive to the principle of law recently laid down that vehicle should not be left parked in the dealers premises nev e r the less fact and circumstances of the case in hand are definitely different. Herein this vehicle carried inherent manufacturing defects in as much as repairing replacement was delayed beyond expectation and to crown all that engine was not that which was numbered in the sale challan (vide Ext.A) followed by replacement thereof together with gear box. The complainant being cheated was therefore justified in not taking back the repaired vehicle with replaced vital parts like engine and gear box back.

From perusal of evidence adduced on affidavits by both parties it is squarely established that the same is oath against oath but factual position having material base has demonstratibly not undergone any change. It is singularly wrong engine with inherent manufacturing defects and gear box as well. However it would not be out of place to mention that advancement of loan, accrual of interest thereon and recovery thereof is one thing and sale of not yielding product to the purchaser is another thing. Fusion of both should not be confused. Therefore, whereas the financer very much within its legitimate right to grant exemption of interest or waiver of loan and interest if law gives direction to it, it is entitled to recover loan and interest thereon from the borrows the supplier (dealer) has to compensate the purchaser of the vehicle if the situation so warrants as in this case we find. In this view of the matter in the light of what has been discussed in the foregoing paragraphs this case is partially allowed in terms of the following. The O.P. Nos. 1 and 2 jointly and severally shall replace the vehicle in question and supply the same to the complainant in writing detailing therein surrender and acceptance of the old vehicle the complainant shall not be exempted from paying interest on the loan amount and O.P. No.1 shall pay compensation of Rs.50,000/- ( Fifty Thousand) to the complainant for mental, physical and financial sufferings through loan A/C payee of which recovery of loan amount and interest by the O.P. No.3 should be the interest charge and likewise replacement if old by new vehicle would be the first charge on the O.P. No.1 and any problem with respect to the old vehicle shall be sorted out by and between the O.P Nos. 1 and 2 without advancing any excuse to the complainant.

Accordingly it is hereby ordered that this case be and same is allowed partially as noted above directing the Opp. Parties to comply with this order within ninety days of receipt of certified copy of this order and or service of a copy of certified copy of this order upon them by the complainant through registered post failing which ( on expiry of schedule) the complainant shall be at liberty to see this order executed through the process of law as well as the complainant shall be entitled to interest on the purchase price of the vehicle in question @ 12% per annum with quarterly rests till replacement and realization of compensation of Rs.50,000/- as directed above. This case stands disposed of accordingly.

This order was impugned by both the dealer as well as the Petitioner, the manufacturer of the said vehicle, before the State Commission. The plea taken by the Petitioner before the State Commission was twofold. The first was that the Complainant was not a consumer since he purchased the commercial vehicle and second that the District Forum had failed to consider the fact that the vehicle was purchased with full satisfaction and that the defective parts were replaced free of cost and therefore, there was no justification in the direction to replace the vehicle with a new one. The State Commission held as under:

"5. The counsel for the respondent - complainant submits that the District Forum has passed the impugned order after perusing evidence adduced on affidavits by both parties which is proper and legal. The vehicle has been purchased for earning of his livelihood by means of self employment taking a loan of Rs.95,000/- from scheduled caste Development Corporation. No parts have been changed and his application was never considered. A legal notice was also given to the appellant to replace the vehicle but no action was taken. The cause of action arose on 04.07.2001 as well as on 23.07.2001 when the respondent sent a legal notice to appellants. Hence, the complaint is not time barred. There is no error and illegality in the District Forum order. Hence, it is fit to be affirmed and the appeal is fit to be dismissed.

Considering the submissions of the appellants as well as of respondent-complainant and on perusal of the order passed by the District Forum it appears that the District Forum has considered all aspects of the matter in right perspective. The Forum has adduced evidence on affidavits from both sides. It is admitted fact that the complainant-respondent purchased the vehicle in question after taking loan from the Schedule Caste Development Corporation, Muzaffarpur for earning his livelihood by means of self employment. So, the respondent-complainant is a Consumer of the appellants under section 2(d)(ii) of the Consumer Protection Act, 1986. The M.V.I. Report, the report submitted by the executive Magistrate West Muzaffarpur to the District magistrate evidences on affidavits shows that the vehicle was defective. There is deficiency on the part of the appellants. We do not find any error and illegality in the District Forum order. Hence, the District Forum order is affirmed and the appeal stands dismissed. However, the amount of compensations Rs.50,000/- (Rs.Fifty thousand only) seems high. It is reduced to Rs.30,000 (Rs.Thirty thousand only)."

This order is impugned before us only by the Petitioner who is the manufacturer of the subject vehicle. It is apparent from the facts that he had not raised any defence before the District Forum and therefore, did not contest the claim of the Complainant. Petitioner also did not lead any evidence to prove that the subject vehicle was not having any defect of such nature which could not be repaired or that any repair was done on the subject vehicle. From the facts and the evidences as recorded and proved before both the Forum below on the basis of evidences, it is apparent that the Complainant had purchased the vehicle for his self-employment and therefore, there is no illegality of infirmity in the finding of the Forum below that he is a consumer within the meaning of the Act.

It is vehemently argued by learned counsel for the Petitioner that in the terms and conditions of the warranty governing the parties, the subject vehicle could not be exchanged and therefore, any claim of exchange was not maintainable and therefore, the impugned order suffers with illegality. Reliance is placed on " Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra And Another, (2006) 4 SCC 644". She has also relied on the terms and conditions of the warranty which were filed by the Petitioner along with the present Revision Petition. It is argued on behalf of the Complainant that the said terms and conditions of the warranty speak of exchange of vehicle and therefore, the argument that there were no terms and conditions of the warranty of exchange of vehicle is meritless.

We have perused the terms and conditions of the warranty which are filed by the Petitioner. The same reads as under:

TERMS AND CONDITIONS OF WARRANTY:

No claim for exchange or repair can be considered unless the customer claiming warranty fulfils the following conditions:

Immediately upon discovery of defect the customer approaches the nearest dealer with the vehicle in question and enables him to remove and despatch to Scooters India Limited the part/parts, attributing to the defects.

Produces the original documents to enable the dealer to verify engine and Chasis No., date of sale/registration, Kms. Covered & other relevant datas.

This warranty shall not apply to:

Any defective part of parts which in the opinion of Scooter India Limited has been injured by wear and tear in any form whatsoever of improper use or neglect or due to any accident sustained drive or overloading or any alteration whatsoever to the vehicle.

Any vehicle wherein the checks specified are not or have not been carried out systematically.

Any case where the operating instructions have not been complied with.

Any part of parts of chasis to which any accessory, which in the opinion of Scooters India Limited is unsuitable has been fitted.

Any vehicle in or to which any part not manufactured and/or sold by SIL has been fitted.

Any vehicle which has been used for any competition or race and or for attempting to set up any kind of record.

If oils other than recommended oils for engine gear box and differential are used.

Any vehicle wherein spares other than those manufactured by Scooters India Limited have been used.

Any vehicle to which repair and/or modifications have been carried out by an unauthorised dealer or workshop.

Any vehicle where the body has not been built by SIL authorised fabricators, as per SIL specifications.

Any vehicle where the six service have not been done.

(emphasis supplied)

The terms and conditions of the warranty clearly speak of exchange/repair. The argument of the learned counsel that the terms and conditions of warranty do not permit exchange is meritless. No fault can be found in the impugned order whereby the exchange of the defective vehicle has been ordered. It is also apparent from the order of the State Commission that the findings are based on M.V.I. report submitted by the Executive Magistrate West Muzaffarpur to the District Magistrate and other evidences on affidavits which show that the vehicle was defective.

In view of the above, we found no illegality or infirmity in the impugned order. The impugned order is based on the legal propositions and the facts proved before the Forum below by way of evidences. There is no merit in the present Revision Petition. The same is dismissed.

Despite the fact that the Petitioner had not contested the claim of the Complainant before the District Forum, the Petitioner has dragged the Complainant to this Commission. Hence, while dismissing the present Revision Petition, we also grant to the Complainant cost to the tune of 20,000/- which shall be paid by the Petitioner to the Complainant within four weeks from today by way of Demand Draft, failing which the Complainant can file the execution.