State Consumer Disputes Redressal Commission
Milagres S. Coutinho vs Sunil Pailwan(Sales ... on 27 March, 2015
1
BEFORE THE HON'BLE GOA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, AT PANAJI
First Appeal No. 50/2014
Quorum : Hon'ble Shri Jagdish Prabhudesai and
Hon'ble Smt. Vidhya Gurav, Members
Mr. Milagres S. Coutinho,
s/o late Roque Francisco Coutinho,
major of age,
r/o H. No. 728, Fradilem,
Navelim Salcete, Goa.
Pin Code 403707 ...Appellant
V/s
1.Mr. Sunil Pailwan, (Sales Manager/Engineer), Mahindra 2 Wheelers Ltd., D-1, Block, Plot No. 18/2 (Part), M.I.D.C., Chinchwad, Pune-411 019 (India)
2. Mr. Rajiv Keni, Velgi Automobile, Simpany Arcade, Near Syndicate Bank, Caranzalem, Panaji, Goa.
3. Mahindra Two Wheelers Limited., D-1 Block, Plot No. 18/2 (Part), M.I.D.C., Chinchwad, Pune-411 019 (India) ...Respondents Ld.Adv. Shri. Joaquim Godinho appears for Appellant. Ld. Adv. Shri. Mauzekar for the Respondent appears for Respondent No. 3.
Respondent No. 3 is represented by authorized representative Shri. Joaquim Gonsalves.
None present for Respondent No. 1 and 2.
2ORDER Date : 27.3.2015 (Per Shri Jagdish Prabhudesai, Member)
1. This Order shall dispose of the present Appeal dated 2.7.2014 filed by the Appellant herein inter alia challenging the Order dated 26.5.2014 passed by the Consumer Dispute Redressal Forum, South Goa, at Margao in Complaint No. 9/2012, hereinafter referred to as the 'impugned Order'.
2. The brief fact of the case as reflected in the original complaint filed before the Ld. Forum are as under :
i. The case of the Complainant is that he purchased a Mahindra Duro 2 wheeler on 8th Febraury, 2011 from the Opposite Party No. 2, which is registered under No. GA-08/P-6007 for a price of Rs. 40,750/-and that from the very next day the said vehicle started giving problems. The problems as narrated are that there was a starting problem and if the vehicle stopped it did not start immediately but restarted only after 20 to 30 minutes and that the Opposite Party No. 2 was informed who in turn informed the Complainant that the problem would be rectified at the first servicing on 14.3.2011.
ii. The Complainant alleged that after the first servicing the problems continued and in addition the vehicle would suddenly stop whilst driving and the 3 Complainant made phone calls to Opposite Party No. 2 in order to rectify the said defect. On the first occasion when the bike stopped near the Bank of India, at Margao, the attending Technician brought and replaced a part with a second hand part however the defect remained. On number of occasions thereafter, whenever the said defect came to the fore, the same could not be rectified to the satisfaction of the Complainant and the vehicle kept stopping suddenly on the road.
iii. The Complainant addressed letters to both the Opposite Parties dated 13.5.2011 giving the details of the defects to the said bike as set out in paras 1 to 6 of the complaint. As the problem continued to remain, the Complainant on 24.5.2011 met the Sales Manager of Opposite Party No. 1 and briefed him about the whole things but despite the promise to do the needful, the said Manager failed to take any effective steps to ensure that the problem was rectified. The Complainant has given the details of the subsequent events that referred to the meetings and the correspondence between the parties in the original complaint. However the aforesaid defects could not be cured.
iv. The Complainant alleged that he therefore brought the vehicle to his office at Margao in a pick- up on 30.7.2011 and the Technician of Opposite Party No. 2 picked up the said vehicle from there and took the same to the service Centre of Opposite Party No. 2 4 but failed to do the needful and the said vehicle is there till date. Hence the original complaint was filed before the Ld. Forum on 7.2.2012 with the following reliefs : For the cost of the bike towards conciliation proceedings, travelling expenses, mental torture and other expenses for the amount of Rs. 1,63,896/- alongwith the interest of 18% from 18.2.2011.
v. The Opposite Parties i.e. the Respondent herein filed a written version before the Ld. Forum and objected the complaint on the following grounds :
a) That the complaint be dismissed for non joinder of necessary parties;
b) That there is no privity of contract with the Complainant;
c) That the pleadings were frivolous and vexatious
d) That they admitted doing the servicing on 14.3.2011 and acknowledged receipt of the letter dated 13.5.2011. They admitted to a minor fault pertaining to self-starting of the Scooter which they alleged that the same is due to tendency pressing the self starter switch provided with more pressure than required and that the same was rectified;e) That when the Manager of Opposite Party No. 1
visited the workshop of Opposite Party No. 2, 5 he met the Complainant and tried to remove the defect to the bike and the said vehicle was found to be road worthy and without any problems.
f) That the Complainant had been indulging in tarnishing the image of Opposite Parties in the manner stated in the written version.
g) That there is no manufacturing defect to the said bike and there is no deficiency in service on the part of the Opposite Parties and hence the complaint be dismissed
3. The Ld. Forum after hearing the parties and on going through the evidence on record passed the impugned Order on 26.5.2014 at para 22 thereof which contains the following directions :
"22. In view of the above, the complaint be partly allowed. The Opposite Party is directed to service the vehicle and issue a fitness Certificate. The Opposite Party is directed to pay to the Complainant a sum of Rs. 1,000/- towards cost."
4. It is this impugned Order passed by the Ld. Forum in Complaint No. 9/2012, that is sought to be challenged under the present Appeal. We have gone through the contents of the Memorandum of Appeal. We have also heard arguments advanced by all the parties and perused the evidence on record of the 6 original file. We now proceed to record our observations and findings in respect of the matters/ issues raised in the present Appeal as would follow hereinafter :
5. The Appellant has argued before us that the said vehicle as referred to in the complaint had a manufacturing defect right from inception in as much as the said vehicle suffered from a starting problem and whilst drivng the said vehicle to any destination, it stops suddenly causing extreme inconvenience to the Complainant. The Appellant also had argued vehemently that even after the subsequent servicing, the aforesaid problem persisted.
6. The Respondent, on the contrary has argued before us that they have explained to the Complainant from time and again that the aforesaid problem was due to the self-starter provided to the Scooter which was rectified and that the defect was noticed due to improper operation, the tendency to press the switch with more pressure than required. The Respondent also argued that the problem of bike stopping after every twenty to thirty minutes and sometimes in the middle of the road was explained to the Complainant as being the result of cranking of the switch which led to the battery draining itself.
7. On going through the documents produced on record of the original file placed before us, we find no reason to disturb the finding of the Ld. Forum that 7 every manufacturing unit should have, as its prime duty, to see that the product put by them in the market comes after the same is fully tested as per standards. In this regard, the Ld. Forum has rightly come to the conclusion vide para 11 of the impugned Order that "The delivery of a vehicle which is imperfect by itself whether the same is consequential to a single component or due to the totality of the components is not acceptable and therefore there cannot be a justification on the part of the manufacturers to put the customer in inclement situations due to its inadequacy and lack of perfection".
8. We also find no reason to disbelieve or disturb the finding of the Ld. Forum to the effect that "It becomes difficult for us to ascertain as to whether the problem was resolved. Whether the same occasioned because of a manufacturing defect, petrol adulteration or a defective battery or some other adjustments considering that the vehicle was a new one, is not known to us". The Ld. District Forum has applied the ratio in the case of General Manager, Piaggio Vehicles Pvt. Ltd. (FA No. 23 of 2014 decided on 13.5.2014) passed by this Commission wherein we have held as under :
"We could go on and on. What follows from the above cases is that when the part is found to be defective, the same is to be replaced and the defect rectified. The demand for the replacement of the entire engine 8 or the entire vehicle was most unfair and un- responsible".
9. To our minds, the Complainant has substantiated his case before the Forum with cogent evidence and in the process has produced the following documentary evidence :
i. R.C. book xerox copy ii. Receipts issued by the Opposite Parties dated 8.2.2011 Colly iii. Customer Enquiry Form dated 8.2.2011 iv. Notices dated 13/5/2011 and 26/5/2011 (Colly) v. Receipt of the Post (Registered A.D.) dated 28.5.2011
10. On the contrary, to our minds, we find it difficult to believe the defence of the Respondents before the Ld. Forum that on account of improper operation of the self-starter switch and continuous cranking of the said switch resulted in discharging of battery in turn leading to starting problems with the vehicle of the Complainant. It is unacceptable to us that the Respondent at any point of time would succeed in rectifying the defect of the said vehicle. The defence of the Opposite Party before the Ld. Forum that the vehicle was kept ready to be delivered to the Complainant on 30.7.2011 itself and the Complainant, though informed, has not taken delivery till date for which the Opposite Party cannot be blamed, is also not acceptable to this Commission. The sole question is whether the Respondent 9 succeeded in removing/rectifying the said defect within the reasonable time. The evidence on record clearly indicates that the defect to the said vehicle appears to be incurable one and it has to be concluded that the same was a manufacturing defect.
11. The whole attitude and approach of the Respondent while handling the case right from inception when his Office received the complaint from the Complainant in the matter of rectifying the defects, appears to be unsatisfactory and motivated by delaying tactics. The Ld. Forum has rightly placed due reliance on the Affidavit-in-evidence of the Complainant dated 23.7.2012. Also, the fact remains that the Technician of the Opposite Party who claims to have attended the job work, has failed to file supportive Affidavit.
12. However, at this stage it is pertinent to note that though the Respondent has relied upon the Judgement dated 28.11.2014 passed by this Commission in F.A. No. 57/14, we do hold that the same is not applicable in reference to the facts and circumstances of this case. On the other hand, we are inclined to follow the Judgement of this Commission in another case since the issues raised thereunder and the contentions raised in this case are identically similar being F.A. No. 37/14 in Miss. Pranali Chari vs. The General Manager dated 05/12/2014.
13. However, it needs to be emphasized that the Ld. District Forum has not applied its mind 10 judiciously while granting the relief. In our considered opinion, the direction of the Ld. Forum in allowing the complaint partly and directing the Opposite Party to service the vehicle and issue a Fitness Certificate together with payment of the cost of Rs. 1,000/-, is not just and proper in view of the facts and circumstances of this case. We are of the opinion that the defect alleged in the vehicle cannot be curable and removed by servicing the vehicle under the aforesaid direction. There is absolutely no guarantee that such a defect will not recur over a period of time even after the vehicle is serviced as per the aforesaid direction. Since the Respondent has failed to remove the defect over a period of time, the Complainant cannot be allowed to suffer further and witness injustice. Hence, the finding of the Ld. Forum leading to the aforesaid relief needs to be interfered with in the larger interest of justice. We are therefore inclined to hold that servicing the vehicle in terms of the aforesaid directions will not serve any purpose. The Complainant i.e. the Appellant herein, has to be compensated in terms of the decision dated 14.6.2012 in C.C. No. 6/10 in the Case of Ethelwad O. Mendes wherein it was held as under :
"The compensation in terms of Section 14(1) (d) of Consumer Protection Act, 1986 would include both pecuniary and non pecuniary losses caused to the Complainant and his family. Pecuniary losses are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary losses are those which 11 are incapable of being assessed by arithmetical calculations and the latter would include, inter alia, compensation for inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." It was further held that "Compensation as a rule can never be assessed with accuracy or mathematical precision. It involves some guesswork more so when it comes to non-pecuniary loss. Compensation has tot to be just and fair to the Complainant. Moderation is the key word whilst doing the assessment. It ought not to be punitive to the O.P. Like cases should receive like compensation. These are some of the basic principles which are to be kept in mind whilst assessing the compensation payable in a given case".
14. To conclude, we are very much inclined to partly allow this Appeal and accordingly modify the impugned Order passed by the Ld. Forum in Complaint No. 9/2012. Accordingly, we hold that the ends of justice would be met while we are directing the Respondent herein to pay to the Appellant the consolidated damages of Rs. 30,000/- (Rupees Thirty Thousand only) considering the original cost of the vehicle paid by the Complainant minus the use of the vehicle by the Complainant over some definite period of time. We are also inclined to direct the Respondent to pay the cost of this Appeal in the circumstances of this case.
1215. In view of our aforesaid findings, we do hereby pass the following :
ORDER It is hereby ordered that the present Appeal is dated 7.2.2012 filed by the Appellant herein is partly allowed and the impugned Order dated 26.5.2014 passed by the Ld. Forum, South Goa, at Margao in Complaint No. 9/2012 is hereby modified. Accordingly, the direction of the Ld. Forum as regards servicing the vehicle and issuing a Fitness Certificate is hereby set aside. The Respondent herein is hereby directed to pay to the Appellant, by way of the consolidated damages, the amount of Rs. 30,000/- (Rupees Thirty Thousand only) within 30 (thirty) days from the date of this Order, failing which the aforesaid amount shall carry the interest @ 8% per annum from the date of the aforesaid prescribed period of compliance of this Order. The Respondent is hereby directed to pay to the Appellant the cost of Rs. 5,000/- (Rupees Five Thousand only) within 30 (thirty) days from the date of this Order.
Smt. Vidhya Gurav Shri Jagdish Prabhudesai (Hon'ble Member) (Hon'ble Member)