Consumer Case Studies

National Consumer Disputes Redressal Commission, New Delhi

R C Jain, Presiding Member and Dr P D Shenoy, Member

M/s Shankar Automobiles through its Proprietor - Petitioner

Versus

Deepak Kumar Singh - Respondent

Revision Petition No.1042 of 2004

Decided on 15.7.2008

 

Consumer Protection Act, 1986- Section 21(b) - Complaint alleging manufacturing defect in motorcycle purchased by Respondent from Petitioner dealer - Allowed by District Forum directing Petitioner dealer to replace motorcycle with new one within prescribed time or in the alternative pay price of motorcycle amounting to Rs. 33,700 along with interest @ 12% p.a. and also a compensation amount of Rs. 11,000 - Appeal - Dismissed by State Commission - Revision petition thereagainst - Plea, of Petitioner dealer that he being simply a dealer of Kinetic Engineering Ltd (manufacturers) and not the manufacturer; liability, if any, it should be on manufacturer rather than on Petitioner dealer - Held, Petitioner having received the amount and having undertaken to do free service and rectify any defect during period of warranty or otherwise, could not escape liability towards manufacturing defect found in vehicle - Petitioner could not escape his liability to replace motorcycle or refund its price, once it was established that motorcycle had certain manufacturing defects which could not be rectified despite efforts made by Petitioner - Again in absence of manufacturer being made Respondent by Petitioner dealer, held not legally permissible to pass any adverse order against manufacturer even for purpose of fixing liability of Petitioner, joint and several with the manufacturer - However, once Forum below having directed Petitioner to refund price of motorcycle, district forum was not justified in burdening Petitioner with interest on said amount and compensation - Hence revision petition partly allowed holding that Petitioner was not to be burdened with any interest on price of motorcycle and any compensation. Result: Revision petition partly allowed. Important Point Petitioner dealer having received amount for motorcycle could not escape his liability to replace motorcycle or to refund its price if the manufacturer is not impleaded by the dealer as s party in the litigation, once it was established that motorcycle had certain manufacturing defects. Order R C Jain, Member - The challenge in this revision is to the order dated 7.1.2004 passed by State Consumer Disputes Redressal Commission Jharkhand, Ranchi (for short the 'State Commission') in appeal No. 402/2003. Vide the impugned order, the State Commission had dismissed the appeal filed by the Petitioner herein against the order dated 18.7.2003 passed by the District Consumer Forum; Deogarh in complaint case No. 90102.

2. The consumer dispute in this case relates to the manufacturing defects in motorcycle purchased by the Respondent Deepak Kumar Singh from the Petitioner dealer on 22.7.2002 against payment of Rs. 33,700/-. Immediately after the purchase of the said motorcycle, the Respondent noticed certain defects including the manufacturing defects in the motorcycle, which could not be rectified by the Petitioner despite their efforts to do so. The Respondent, therefore, filed complaint against the Petitioner dealer and the manufacturer seeking replacement of the motorcycle with a new motorcycle or, in the alternative, for a direction to the dealer and the manufacturer to refund the price of the motorcycle along with interest besides compensation. Before the District Forum, both the dealer and the manufacturer were proceeded with ex parte, as there was no representation on their behalf despite due service of notice upon them. On a consideration of the matter, the District Forum allowed the complaint of the Respondent with a direction to the Petitioner dealer herein to replace the motorcycle with new one within the prescribed time or in the alternative to pay price of the motorcycle amounting to Rs.33,700/- along with interest @ 12% p.a. The District Forum also awarded a sum of Rs.11,000/- as compensation in favour of the Complainant. Aggrieved by the said order of the District Forum, the Petitioner dealer filed appeal before the State Commission but without success. Hence, this petition. 3. We have heard the learned counsel representing the Petitioner dealer at length and have bestowed our thoughtful consideration to his submissions. However, we had no opportunity of hearing the Respondent, as none appeared from the side of the Respondent at the time of hearing of the revision petition despite due service of notice. 4. The thrust of the arguments of the learned counsel for the Petitioner is that Petitioner being simply a dealer of Kinetic Engineering Ltd (manufacturer) and not the manufacturer, he is not liable for any manufacturing defects as alleged by the Respondent-Complainant or which can be said to have been established in the motorcycle in question which was sold by him particularly so when the defects noted in the motorcycle had appeared during the period of warranty and every effort was made by the Petitioner herein to rectify the defects as a goodwill gesture and gratuitous action. Therefore, if at all any liability could be fastened, it should on the manufacturer rather than on the Petitioner dealer. The argument appears to be attractive but has no merits because as per the Petitioner's own showing he is the dealer of Kinetic Engineering Ltd - the manufacturer. The Respondent had in fact paid the price of the vehicle to him. We are not aware of the arrangement between the Petitioner and the above-named manufacturer. The Petitioner having received the amount and having undertaken to do free service and rectify any defect during the period of warranty or otherwise cannot escape his liability even towards manufacturing defect found in the vehicle. No doubt, the Respondent in his complaint had arrayed the manufacturer a party and in that view of the matter both the Petitioner and the manufacturer could be held jointly and severally responsible in regard to the manufacturing defect found in the motorcycle in question. In our view, still the Petitioner cannot escape his liability to replace the motorcycle or to refund its price, once it is established that the motorcycle had certain manufacturing defects, which could not be rectified despite the efforts made by the Petitioner. Yet another reason why we cannot unfasten the liability for compliance of the order passed by the Fora below on the manufacturer is that in the present revision petition for the reasons best known to the Petitioner, he has not made the Kinetic Engineering Ltd as Respondent though the said manufacturer was initially impleaded by the Complainant as one of the opposite parties in the complaint. In absence of the manufacturer before us in these proceedings, it is not legally permissible to pass any adverse order against the said manufacturer even for the purpose of making the liability unfastened by the Fora below on the Petitioner as joint and several with the manufacturer. 5. It may however be open for the Petitioner to work out his remedy against the manufacturer depending on the arrangement between him and the manufacturer. 6. Counsel for the Petitioner has then urged before us that the order passed by the Fora below is harsh to the Petitioner inasmuch as besides ordering the refund of the price of the motorcycle, the District Forum has awarded interest @ 12% p.a. and a compensation of Rs. 11,000/-. The said submission cannot be said to be devoid of merits altogether. In our view, once the Fora below had directed the Petitioner to refund the price of the motorcycle, the District Forum was not justified in burdening the Petitioner with interest on the said amount and award compensation to the extent of Rs. 11,000/-. Keeping in view the entirety of the facts and circumstances, we are of the view that ends of justice would be adequately met if the relief granted by the District Forum and as affirmed by the State Commission is modified and modulated to the extent that Petitioner is not burdened with any interest on the price of the motorcycle and any compensation, once the main relief of the Respondent-Complainant in regard to refund of the price of the motorcycle having been granted. 7. In the result, we partly allow the present revision petition and modify the order passed by the Fora below to the extent that only a sum of Rs.33,700/- shall be refunded by the Petitioner to the Respondent if not already refunded pursuant to the interim order passed by this Commission on 18.5.2004. If the amount has been deposited by the Petitioner with the District Forum, the same shall be disbursed to the Respondent subject to the Respondent returning the motorcycle in question to the Petitioner dealer within a period of four weeks from today. In the circumstances, there shall be no order as to cost in these proceeding   Revision petition partly allowed.