State Consumer Disputes Redressal Commission
Kulwinder Singh vs Kulwinder Singh on 2 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 385 of 2010
Date of institution : 12.03.2010
Date of decision : 02.12.2013
Kulwinder Singh s/o Shri Raj Mal, H.No.131, Bunga Colony, Barring,
Jalandhar Cantt.
.......Appellant-Complainant
Versus
1. M/s Dada Motor Garage, B.S.F. Chowk, G.T.Road, Jalandhar
through its Manager/Authority Rep.
2. Piaggio Vehicles Private Limited, 101-B/102, Phoenix, Bund
Garden Road, Opp. Residency Club, Pune 411 001 through its
Director/Manager/Authorised Representative.
......Respondents- Opposite Parties
First Appeal against the order dated
27.1.2010 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Munish Goel, Advocate. For respondent No.1: Ex parte. For respondent No.2: None.
JUSTICE GURDEV SINGH, PRESIDENT :
Kulwinder Singh, appellant/complainant, purchased vehicle (Mini Four Wheeler), fully detailed in para no.1 of the complaint, from opposite party No.1 on 27.2.2008 for Rs.2,30,000/-, vide Bill No.5302, in respect of which a warranty of 18 months was given and it was assured that in case of any defect or problem, the same would be removed immediately free of cost to his entire satisfaction. After two months of the purchase the vehicle started giving different problems such as ceasing of engine, pump problem, starting trouble, First Appeal No.385 of 2010. 2 defect in piston kit, pick-up problem etc. When he brought these defects to the notice of opposite party No.1, he was advised to bring the vehicle to his workshop and accordingly he handed over the defective vehicle to that opposite party on 9.8.2008. On 19.9.2008 the vehicle was returned to him by saying that the same had been set right and at that time Rs.987/- was charged from him as cost of kit piston set barrel, air filter, HW switch, clutch wire etc., though these parts were required to be replaced free of cost; being under warranty. The vehicle again became out of order on 10.11.2008 and remained with opposite party No.1 for 12 days for removal of those defects. On 22.11.2008 the vehicle was returned to him by saying that the defects had been removed. Again a sum of Rs.420/- was charged from him for kit barrel piston and rings etc., though they were required to be replaced free of cost. The engine of the vehicle ceased on 20.1.2009 thereby causing lot of mental tension and harassment to him and that also deprived him of the business transactions. The vehicle was again handed over to the opposite party on 20.1.2009 for removal of the defect. At that time the vehicle was returned only on 16.2.2009 and a sum of Rs.1500/- was charged as cost of replacement. The main problem with the vehicle is that it does not start easily and engine thereof cease again and again. The pick-up is very poor and the engine consumes much mobil oil. The spare parts thereof are available only with opposite party No.1, who sells the same at higher rate. On account of non- availability of the spare parts in the market, he had to purchase the same from opposite party No.1 at higher cost. During the period the First Appeal No.385 of 2010. 3 vehicle was kept by opposite party No.1 for repairs, he was deprived of his business transactions. Moreover, the technical staff of opposite party No.1 is untrained, who create more problems and defects instead of rectification. He had purchased the vehicle for earning his livelihood after getting the same financed from State Bank of India, for which monthly instalments of Rs.4,500/- each are being paid. On account of frequent disorder and non-removal of the defects, he was deprived of the use of the vehicle causing financial loss to him. On that account he could not pay the monthly instalments in time for which the Bank charged penalty and penal interest. A defective vehicle was sold to him, which tentamounts to unfair trade practice. The non-removal of defects and non-repairs of the vehicle amounts to negligence and deficiency in service on the part of the opposite parties. He prayed for issuance of directions to the opposite parties to pay the sum of Rs.3,60,274/- along with interest at the rate of 18% per annum from the date of purchase. The break-up of that amount, as given in the complaint, is as under:-
1) Price of the vehicle 2,30,000-00
2) Expenses on insurance 11,311-00
3) Expenses on RC 13,000-00
4) Expenses on body built 12,000-00
5) Amount paid on each free service 3,056-00
6) Amount charged by OP for replacement of 2,907-00
Parts
7) Interest paid to Bank 35,000-00
8) Mental tension and harassment 50,000-00
9) Litigation Charges 3,000-00
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Total:- Rs.3,60,274-00
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2. Independent written replies were filed by the opposite parties, though they have taken up the same stand. Opposite party No.1 in its written reply admitted that the vehicle was purchased from it by First Appeal No.385 of 2010. 4 the complainant for the amount mentioned in the complaint and that the same was brought to its workshop on the dates mentioned in the complaint for removal of the defects. While denying the other averments made in the complaint, it pleaded that the spare parts, which were covered under the warranty, were changed free of cost and nothing was charged from the complainant for the repairs.
Every time the vehicle was handed over to the complainant after removing the defects. The problem, if any, occurred in the vehicle due to overloading and it was the complainant, who was overloading the same by double the capacity. The problems occurred due to that overloading and still it changed the spare parts free of cost. The complaint is not maintainable as the vehicle was purchased by the complainant for commercial purposes and he does not fall under the definition of 'consumer' as defined in the Consumer Protection Act, 1986. He has not come to the District Forum with clean hands and hence concealed the material facts. Every time the vehicle was fully repaired to his entire satisfaction.
3. The parties produced evidence in support of their respective averments before the District Consumer Disputes Redressal Forum, Jalandhar (in short, "District Forum"), which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide order dated 27.1.2010. Feeling aggrieved by that order, the complainant has preferred the present appeal.
4. We have heard learned counsel for the complainant as no one appeared on behalf of respondent No.2 and respondent No.1 is ex parte. We have also carefully gone through the records of the case. First Appeal No.385 of 2010. 5
5. It was submitted by the learned counsel for the complainant that from the evidence produced before the District Forum, it stands proved that the vehicle had been developing the same defects again and again and, as such, it can be said to be a manufacturing defect. The same defects have developed again after opposite party No.1 rectified those last time. Had there been no manufacturing defect, there was no question of re-occurring of same defects again and again. In these circumstances the District Forum should have ordered the replacement of the vehicle as the warranty had still not expired. If whole of the vehicle was not to be replaced, then at least engine thereof required replacement. The conduct of opposite party No.1 in not fully removing and rectifying the defects amounts to deficiency in service on its part, which resulted constant mental torture to the complainant and, as such, an order should have been made for the payment of compensation and litigation expenses.
6. We find force in the submissions made by the learned counsel for the complainant that the vehicle had been developing the same defects again and again. It is the admitted case of the parties that the vehicle, which was manufactured by opposite party No.2 was purchased by the complainant from opposite party on 27.2.2008. The usual warranty was issued at that time regarding the replacement of the defective parts, which were the result of the manufacturing defect. All the averments, made in the complaint, were supported by the complainant by proving on record his affidavit Ex.C-1A. The facts, as deposed in that affidavit, find corroboration from the documents proved on the record. The first job card proved First Appeal No.385 of 2010. 6 on the record, which is first in point of time i.e. dated 12.11.2008 is Ex.C-3. As per this job card, the Kit Barrel Piston and Ring were replaced but no amount was charged for the replacement thereof as those were covered under warranty. Similarly, piston set was also replaced. The second job card in point of time is dated 16.2.2009, Ex.C-4. As per that job card, Crank Shaft Assembly, Conrod with Cap, Conrod main bearing, Oil Pump Crown, Pump change, Toothed Belt of timing control, oil pump and ring set were replaced without charging any amount as the same were replaced during the warranty period. With the permission of this Commission, a number of documents were placed on record by the appellant in the appeal itself; which include the job cards dated 4.3.2009, 23.4.2009 and 6.7.2009 Annexure A-7 to A-9. It is very much clear from the job card dated 4.3.2009 that Kit Barrel Piston and ring were again replaced on that date. In addition to that the Head Gasket, Hose Fuel Delivery and Backflow joint were also replaced without charging any amount as it was during the warranty period. As per job card dated 23.4.2009, just after one month, the Head Gasket and Kit Barrel Piston were again replaced. Spark Advance Regulator Assembly was also replaced.
7. In order to rebut this evidence of the complainant, opposite party No.1 proved on record the affidavit of Lalik Dada Ex.O-1/A and opposite party No.2 proved on record the affidavit of U.S. Sahu Ex.O2. In fact the affidavit of the later witness is the carbon copy of the first affidavit. These cannot be labelled as affidavits as only the written reply has been reproduced therein and no deposition was First Appeal No.385 of 2010. 7 made by either of these witnesses as to the facts. The opposite parties have tried to take up the plea that the defect in the parts of the vehicle, which were replaced, developed on account of overloading and careless driving of the vehicle. It cannot be said that these witnesses had been seeing the vehicle being plied by the complainant. They cannot be said to be witnesses to the loading of the goods in the vehicle. Such like facts could have been proved only by examining some expert Automobile Engineer. No such expert was examined by the opposite parties. It is to be held that the evidence produced by the complainant regarding the defect in the engine has remained unrebutted. The evidence produced by the complainant makes it clear that the same defect was re-occurring in the engine again and again. The same can either be the result of the manufacturing defect in the engine itself or the negligence on the part of opposite party No.1 in repairing the same. Even in the face of that evidence the District Forum came to the conclusion that there was no such manufacturing defect. Such a finding cannot be sustained. When that evidence was produced by the complainant, the same was to be relied upon even in the absence of report of any mechanical engineer. The replacement of the same parts again and again speaks volume and goes to prove that there was manufacturing defect in the engine. Therefore, a direction is required to be issued to the opposite parties for the replacement of the engine of the vehicle.
8. The deficiency on the part of opposite party No.1 is apparent on the face of the record as it was not able to remove the same First Appeal No.385 of 2010. 8 defects, though the vehicle was brought to it again and again. The same resulted in the loss of profit in the business by the complainant, who had been earning his livelihood by using this vehicle as a small transport vehicle. For the physical and mental injury suffered by him, he is entitled to the compensation and we asses that compensation at Rs.25,000/-. Besides, that he is also entitled to the litigation expenses.
9. Accordingly the appeal is allowed, the order of the District Forum is set aside and the opposite parties are directed to replace the engine of the vehicle within one month of the receipt of the copy of this order. Opposite party No.1 is directed to pay a compensation of Rs.25,000/- and litigation expenses of Rs.5,500/-.
10. The arguments in this case were heard on 20.11.2013 and the order was reserved. Now, the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) December 02 , 2013 MEMBER Bansal First Appeal No.385 of 2010. 9