State Consumer Disputes Redressal Commission
Sanjay Rastogi vs M/S Arsh Enterprises & Another on 5 December, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 71/2011
Shri Sanjay Rastogi
Partner Deepak Traders
Patel Marg, Kotdwara
District Pauri Garhwal
......Appellant/ Complainant
Versus
1. M/s Arsh Enterprises
43, Gandhi Road
Dehradun
2. M/s Piaggio Vehicles Pvt. Ltd.
102 B Phoenix Bund Garden Road
Pune
......Respondents/ Opposite Parties
Appellant in person
Mr. Ajay Gupta, Learned Counsel for the Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 05/12/2011
ORDER
(Per: Mr. C.C. Pant, Member):
This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.03.2011 passed by the District Consumer Forum, Dehradun in Consumer Complaint No. 216/2008, dismissing his complaint on the ground that he failed to submit the evidences.
2. The complainant Shri Sanjay Rastogi, a resident of Kotdwar (District Pauri Garhwal) and one of the partners of M/s Deepak Traders, Kotdwar, had filed a consumer complaint before the District Forum, Dehradun on 01.12.2008. The facts of the consumer complaint in brief 2 are that the complainant purchased a vehicle (three wheeler) on 26.07.2006 from M/s Arsh Enterprises, Dehradun - opposite party no. 1. The vehicle was manufactured by M/s Piaggio Vehicles Pvt Ltd., Pune - opposite party no. 2 as model "APE CARGO D 810 Delivery Van" 1.3 Tonner. The complainant has alleged that since the very first day of its purchase, when he was taking the vehicle from Dehradun to Kotdwar, it started giving problem. He also found that the vehicle was not fit for plying in hilly roads, though the brochure of the vehicle ensure that the vehicle is powered by its superior engine, effortlessly climbs gradients and hilly roads with higher operating loads even at low speeds. As a result, he could not use the vehicle for the delivery of goods in hilly region of District Pauri Garhwal. Even in the plains, he could not use the vehicle sufficiently because he had to take the vehicle most frequently to the service centre for repair. His woes got further aggravated as the service centre in Kotdwar was closed after a few days of the vehicle's purchase and he had to bring the vehicle every time to Dehradun for service and repair. Though the authorised dealer - opposite party no. 1 claims that its mechanic visited Kotdwar every month, but according to the complainant, the mechanic of the authorised dealer never visited Kotdwar regularly. The result was that the vehicle remained idle for most of the time. By the date the consumer complaint was filed, i.e., upto 26.11.2008, the vehicle could run only 7000 kilometers. The complainant has also stated that the manufacturer - opposite party no. 2 has provided him one year's warranty or trouble free run of 30,000 kilometers, whichever is less. Thus, alleging manufacturing defect in the vehicle, unfair trade practice and deficiency in service by the opposite parties, the aforesaid consumer complaint was filed before the District Forum, seeking a relief of Rs. 3,51,419/- and compensation @ Rs. 200/- per day for harassment, inconvenience, frustration, mental agony etc.
3. The District Forum, after an appreciation of the facts of the case, dismissed the consumer complaint vide its order dated 14.10.2009 on the 3 ground that the complainant failed to submit an expert's report with regard to the manufacturing defect in the vehicle. Challenging this order, the complainant filed an appeal before this Commission on 12.11.2009. This Commission, vide its judgment and order dated 12.08.2010 passed in first appeal no. 208/2009, allowed the consumer complaint and set aside the order dated 14.10.2009 passed by the District Forum. This Commission, remanding back the case, directed the District Forum to decide the consumer complaint afresh in accordance with law in the light of the observations made in the order and the complainant was also directed to take steps for expert report within a period of 10 days. In compliance of this order, the District Forum passed the order dated 29.03.2011, thereby dismissing the consumer complaint on the ground that the complainant failed to take steps within 10 days and could not produce expert report with regard to the vehicle in question. Aggrieved by the order dated 29.03.2011, the complainant has filed this appeal.
4. We have heard the appellant in person and the learned counsel for the respondents and perused the material placed on record.
5. This Commission, in its judgment and order dated 12.08.2010 had made the following observations:-
"-----it is a fit case in which the order impugned is liable to be set aside and the matter is to be remanded back to the District Forum for decision afresh according to law after bringing on record an expert report, as contemplated by the provision of Section 13(1)(c) of the Consumer Protection Act, 1986."
6. In this regard, the appellant's contention is that the order dated 12.08.2010 passed by this Commission has been misconstrued and Section 13(1)(c) of the Consumer Protection Act, 1986 has been misinterpreted by the District Forum. Clarifying it, the appellant submitted that the time of 10 days was given for depositing the requisite 4 fee for carrying out test and analysis of the vehicle in the appropriate laboratory/workshop and the case was to be decided within 2 months' time. Thus, the directions of the Commission for taking steps were with regard to deposition of fee for the test and not with regard to obtaining the expert report. The provisions clearly stipulate that after depositing the fee, the action was to be taken by the District Forum. Even then, the appellant himself wrote letter to the appropriate laboratory, i.e., "The Automotive Research Association of India" (or "ARAI"). The appellant was informed by the ARAI, Pune that it was not authorised by the Central Government to test the used vehicles. We fail to understand as to how a consumer complaint can be dismissed by the District Forum, if the procedure specified under Section 13(1)(c) of the Consumer Protection Act, 1986 could not be followed. Of course, there was mention of Section 13(1)(c) of the Consumer Protection Act, 1986 in the observations made by this Commission, but the directions were to decide the consumer complaint according to law. If the procedure specified under Section 13(1)(c) of the Consumer Protection Act, 1986 could not be followed, then the District Forum should have proceeded in accordance with the provision specified under Section 13 (2) of the Consumer Protection Act, 1986 and to decide the consumer complaint after an appreciation of the evidences produced by the parties. Therefore, the order impugned dated 29.03.2011 is not sustainable and is liable to be set aside and this appeal deserves to be allowed.
7 The appeal is allowed. The order impugned dated 29.03.2011 passed by the District Forum, Dehradun in Consumer Complaint no. 216/2008 is set aside and the case is remanded back to the District Forum with the directions that the case be decided afresh after an appreciation of the evidences filed by the parties as per provisions under Section 13 (2) of the Consumer Protection Act, 1986. No order as to costs.
(MRS. KUSUMLATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) 5