Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu

Consumer Case Studies

Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu

M Y Kawoosa, President and Ch Vidya Sagar, Member

Pathankot Vehicleades Pvt Ltd - Appellant
Versus
Prof Lalita Dhar, Jammu University, Jammu & Ors - Opp Parties

Appeal No. 2429/2002	Decided on 12.03.2003

Consumer Protection Act, 1986 - Section 2(1)(g) and 14(1) - Motor Vehicles - Car - manufacturing defect - Proof of - Purchase of new Maruti Car - Noise in bearing - Non-removal of defect - Complaint filed alleging manufacturing defect in Car - District Forum ordered for replacement - Merely saying manufacturing defect not sufficient for replacement - Vehicle cannot be ordered to be replaced unless manufacturing defect proved.

IMPORTANT POINT

For replacement, manufacturing defects must be such which cannot be repaired or removed so easily.

ORDER

M Y Kawoosa , President – Impugned order dated 14.8.2000 passed by the DF is a subject matter of dispute, in this appeal filed by OP2, Pathankot Vehicleades Pvt Ltd, authorised dealer for OP 1, Maruti Udyog Ltd. Facts emanating from the complaint are that one Smt Prof Lalita Dhar who is Respondent here in this appeal, purchased one Maruti Car A/C Euro-II-(MPI) on 16.5.2k. It is an admitted fact that car was purchased from the Appellant, who is OP 2 in the complaint, against the payment of Rs. 2,54,346.15. The grouse of Complainant/Respondent is that immediately after the delivery of the car, it was found that it had some inherent defect which created difficulty for smooth playing of the car. Complainant brought it to the notice of General Manager Incharge, Appellant. The car was left with the Appellant in his Jammu workshop, who examined the car and found that there was some noise in the bearing. Admittedly, Jammu workshop of the Appellant showed inability to repair it and they sent the car to their workshop at Pathankot which as equipped with all the facilities. It is also an admitted fact that the car was retained by the Pathankot workshop of Appellant. Though they have not given anywhere in writing as to what was the defect in the car, but it was told that some spare part was to be changed (bearing) which was the cause of noise in the vehicle, when it was being plied on the road. However, admittedly the car was returned to the Respondent after so called repairs. Respondent again found the car with defects and complained that the Appellant had failed to remove the defect. He asked for the refund of the cost of car or replacement of the car. Respondent all along pleaded that the car had manufacturing defect which could not be removed by the Appellant. Appellant did not pay any heed to the complaints of the Respondent, so the Respondent approached District Forum to get the grievances redressed. DF issued notice to the Appellant and to the manufacturer of the car, who was OP No. 1. OP No. 1 did not join the proceedings, so the proceedings were initiated against him ex parte and Appellant, who is OP NO. 2 in the complaint, contested the complaint. Appellant contended that the Respondent failed to prove that the car had a manufacturing defect. He has further contended that the bearing of the car which gave noise needed to be replaced. As the spare-parts were not available, it was replaced in Pathankot workshop. The Appellant admitted that the car was retained by them in their main workshop at Pathankot for 11 days but they contended that it was returned after removing the defect. Appellant further contended that the car is being plied on road by the Respondent since then. After recording the evidence of the counsel for the parties, DF came to the conclusion that the car had a manufacturing defect inherent in it which could not be removed by OPs. So, OPs were directed to replace the car with a new one within period of 3 moths from the date of the judgment or return the amount equivalent to the price of the car received from the Respondent i.e. Rs. 2,54,346.15. It is this order against which the Appellant has a grouse and contends that the order of the DF is arbitrary and misconceived.

Heard learned counsel for the parties. As we have already given the admitted position of the case, we want to reiterate that the facts are almost admitted to the extent that the car was purchased by the Respondent from Appellant. It is also admitted that the car had a defect and the Appellant sent it to the main Workshop at Pathankot for repairs where it was retained for 11 days and was returned to the Respondent. Learned counsel for the Appellant has vehemently argued that the Respondent has failed to prove that the car has a manufacturing defect. According to him, replacement of car cannot be made on the basis of minor defects which can well be removed. Learned counsel has agitated that the car is lying with the Respondent who is plying it no road for several years comfortably. He cannot ask for replacement of the car on flimsy grounds. According to the counsel for Appellant, order impugned has been made without application of mind which is against the facts and law. Before addressing to the arguments advanced before us, we want to see the position of law on the subject. In M/s Tata Engineering & Locomotie Co Ltd, a National Consumer Disputes Redressal Commission, New Delhi. The facts of this case are more or less similar as in the present case. It was held that no manufacturing defect was pointed case. It was held that no manufacturing defect was pointed out in the vehicle though it was admitted that there were some minor defects. It was held by the National Commission: Section 14(1) of the Consumer Protection Act authorises the Forum to have the defects removed, even if thee are numerous defects which can be rectified. It will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects (not manufacturing defect) appear which can be rectified or defective part can be replaced. National Commission set aside the order of the State Commission Delhi, who had directed the Appellant to replace the vehicle. National Commission directed the Appellant to take the vehicle from the Complainant and rectify the defect. Similarly, in another case Mahindra & Mahindra Ltd, fist Appeal No. 51 of 1992 decided on 7.12.11992. In this case, Complainant had groused that the engine of the vehicle started giving trouble. He asked for replacement. It was contended that the vehicle was repaired by the company and the Complainant ought to have taken the delivery of the vehicle back, especially when the new engine had already been installed in the vehicle. It was held that if consumer purchases some machinery and some part of it is found to be having manufacturing defect and that part can be replaced, then it will be prejudicial to the interests of manufacturer if he is asked to replace the whole machinery without sufficient cause. The State Commission judgment was found not justified, ordering the OP to refund the whole money paid for the vehicle. Learned counsel for the Appellant referred English case titled Bernstein vs Pamson Motors (Golders Green) Ltd. In this case it has been held:-

(1)

When determining whether any particular defect or feature rendered a new car unmerchantable, the court had to consider:


(a)	Whether the car was capable of being driven in safety;
(b)	The ease or otherwise with which the defect could be remedied;
(c)	Whether the defect was of such a kind that it was capable of being
(d)	Whether there was a succession of minor defects to be taken into consideration.

What we have derived from the decision of the above case is that vehicle cannot be ordered to be replaced unless manufacturing defect is proved, and manufacturing defect must be such which cannot be repaired or remove easily. Here in the case, it is an admitted fact the Complainant/Respondent has not spelt out as to what defect the car had, when it was delivered to him. Merely saying manufacturing defect will not suffice for the replacement of the car. He raised a general complaint about the defects of the car. Respondent has not taken it to any Engineer or Workshop from which he could have got it cleared as to what defects the car had. Even the DF, we should say, has not addressed itself to the provisions of the Consumer Protection Act, which clearly says that if the complaint is made about the defects of the goods then those can be got detected and verified either by the Laboratory or by the Expert. DF should have sent the car for examination as to what defect it has got that has not been done. Not a single defect has been spelt out either by the Respondent or by any Expert appointed by the Respondent or the DF. Now, we have to see what the Appellant says in this behalf. Appellant has admitted that the car had a minor defect. Its bearing was to be replaced but that was not available in Jammu workshop, so the car was sent to Pathankot workshop. It has also been admitted that the car was retained in the Pathankot workshop for 11 days and after the defective part was removed, car was delivered back to the Respondent. Even the Appellant had not maintained the Job Card nor had mentioned as to what defects the car had. However, the Appellant has examined Ganesh Chand, has mechanic working in Appellant’s workshop. Ganesh Chand had examined the vehicle in the workshop of Appellant and found that neither bearing not the engine was causing noise which was require to be replaced and the defect was removed. Not only this, it is an admitted fact that the vehicle was handed over to the Respondent who is plying it since then on the road. In such circumstances, we are inclined to agree with the learned counsel for the Appellant that the order of the DF, directing replacement of the vehicle or return of the principal amount is not justified. This is one part of the case.

Another part of the case is that it is admitted by the Appellant that the vehicle/car was found directive immediately after the deliver. It is also admitted that the car was examined by the Appellant in his Jammu workshop where it could not be set right. It was referred to its main workshop in Pathankot where it was retained for 11 days. This shows that the complaint of the Respondent is not without any substance but it has got some basis. Learned counsel for the Respondent has very genuinely argued that why should consumer accept a defective vehicle if he has opted for a new one and has paid for it. This is a reasonable query which is to be addressed to. Even if the vehicle has got minor defects or it gives noise, it is continuous mental agony to a consumer who has paid for the new car.

It is true that the car has been plied by the Respondent for a long but it is equally true that the car is not plying smoothly and is not without any defects. Respondent might be carrying on it for his own compulsions for having a busy public life, otherwise, one can not deny agony and discomfort being faced by him for carrying on with a defective vehicle which he has paid and opted for the fresh vehicle. This is really a permanent agony and mental harassment to the Complainant who is to be compensated. For these reasons, therefore, we modify the impugned order to the extend that instead of replacement of the vehicle or refund of principal amount, the Appellants are directed to pay Rs. 45,000/- including litigation charges and further direct him to affect necessary repairs not already rectified and not suffered as a result of wear tear and use of the vehicle after taking the vehicle from the Pathankot workshop. Payment of compensation and repairing of vehicle be made within 4 weeks from today. Complainant shall deliver the vehicle to Appellant within a week’s time from today.

Appeal allowed