National Consumer Disputes Redressal
M/S. Sooraj Automobiles Ltd. vs Shafiq Ahmed & Anr. on 15 June, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2583 OF 2009 (Against the Order dated 20/04/2009 in Appeal No. 1356/02,1003/06 of the State Commission Rajasthan) 1. M/S. SOORAJ AUTOMOBILES LTD. Ambala Road, Saharanpur Uttar Pradesh ...........Petitioner(s) Versus 1. SHAFIQ AHMED & ANR. S/o Maqbool Ahmed Julaha, R/o Chittorgarh Rajasthan 2. M/S. GANPATI MOTORS, Raghunath Market, Opp. Krishna Ginning Factory, Pur Road Bhilwara ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Petitioner : Mr. S.K. Sharma, Advocate For the Respondent : For the Respondent 1 : Mr. N.D. Pancholi, Advocate
For the Respondent 2 : NEMO
Dated : 15 Jun 2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
The complainant/respondent purchased the chassis of a three wheeler auto rickshaw, manufactured by the petitioner from its dealer M/s. Ganpati Motors after taking loan and got the body fabricated on the said chasis at the cost of Rs. 17,000/-. Since the vehicle did not perform properly, did not give the promised average and could carry only half of its loading capacity, it was taken by the complainant to the workshop of the dealer M/s. Ganpati Motors on 30.12.1999. The vehicle was serviced and returned to the complainant. Claiming that the defect in the vehicle had not been rectified, the complainant again took it to the dealer on 19.01.2000. The vehicle was again repaired by the dealer, but the complainant found that it was unable to climb the Chittorgarh Fort and its average was also much less than what had been promised. Thereupon the complainant again took the vehicle to the dealer on 28.01.2000, but it was not repaired to his satisfaction. Alleging deficiency on the part of the manufacturer and the dealer in the services rendered to him, the complainant approached the concerned District Forum by way of complaint.
The complaint was resisted by the petitioner primarily on the ground that there was no manufacturing defect in the vehicle which carried warranty only for three months. It was also pointed out in the reply filed by the petitioner that the average given in the instruction manual could be derived only on using the vehicle in test conditions laid down by ARAI Pune, and it was not possible to achieve those conditions in daily driving. It was further stated in the reply that the average given by a vehicle depends upon various factors such as, road conditions, driving manner, quality of engine oil, periodical servicing etc. The dealer of the vehicle which had been impleaded as Opposite Party No. 2 in the complaint, resisted the complaint inter-alia on the ground that the complainant had got the vehicle fabricated for carrying capacity of 8+1 whereas it had capacity of only 3+1 passengers. It was alleged in the reply that the complainant was carrying excess passengers and loading more than the prescribed capacity of the vehicle. The OP No. 2 admitted that the vehicle was brought to it several times but claimed that when the vehicle was sent through its representative on 24.01.2000, the complainant refused to take the delivery on the ground that he was not satisfied by its average.
Vide its order dated 20.09.2002, the concerned District Forum directed the opposite party to rectify the defects in the vehicle to the satisfaction of the complainant and also pay a sum of Rs. 1000/- to him as compensation. It was further directed that the interest charged by the financer of the complainant w.e.f. 19.1.2000, till the date the vehicle is handed over to the complainant will be borne by the opposite parties. A sum of Rs. 500/- was awarded to the complainant as cost of litigation.
Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. The petitioner also filed a separate appeal impugning order passed by the District Forum. Vide impugned order dated 20.04.2009, the concerned State Commission directed the opposite parties i.e. the petitioner as well as the dealer M/s. Ganpati Motors to jointly severally pay to the complainant a lump sum amount of Rs.50,000/- and upon this an interest @ 9% per annum from the date of filing of the appeal. It was further directed that on making the aforesaid payment, the opposite party shall be free to dispose of the vehicle and the complainant will have no claim on the sale proceeds. Being aggrieved from the order passed by the State Commission, the manufacturer of the vehicle i.e. Sooraj Automobiles Ltd. is before this Commission by way of this revision petition. The complainant, however, has not challenged the said order thereby accepting the compensation amounting to Rs.50,000/- and giving up all right, title and interest in the vehicle.
The only question which arises for consideration in this case is, as to whether there was a manufacturing defect in the vehicle which was sold to the complainant or not. If there was a manufacturing defect in the vehicle, award of compensation would be eminently justified. Admittedly, Shri Laxman Singh Shekawat was appointed as a Commissioner by the District Forum with the consent of the parties. On inspection of the vehicle, he reported as under:
"1.Kilometer chain of the tempo not working.
Steering of the tempo bubbling and defect in steering system.
Engine of tempo gets over heated and stops taking excess load on getting over heated.
Application of brakes is very low.
Average, the fuel tank was filled at Gurunanak Filling Station, Bhilwara and the tempo was taken on Bhilwara - Chittorgarh highway across Banas river upto 10 km stone and from there back to Gurunanak Filling Station, Bhilwara and got the diesel filled, this quantity of diesel measured 01 litre. Gurunanak Filling Station is located between kilometer one and two on Bhilwara - Chittorgah Road. On plying at highway, it fetched an average of 28 kmpl. To and fro distance from Bhilwara upto 16 km stone comes near 28 km. Average on plying tempo in city area comes to nearly 20-22 kmpl. On looking at the condition of the engine and load the average should be same as above.
Tempo is not self start one."
It would, thus, be seen that the kilometer chain of the vehicle as well as its steering system were defecting at the time it was examined by the Commissioner. Thus, despite the aforesaid components being defective, the dealer of the vehicle had not replaced them by new components. This by itself amounts to deficiency in the services rendered to the complainant since replacement of the defective components was an obligation of the manufacturer of the vehicle which either it could do itself or could do it through its dealer. The inspection report further shows that the engine of the vehicle was over-heating and the application of the brakes was low. The above referred two defects in my opinion were manufacturing defects in the vehicle sold to the complainant and therefore, the petitioner was under an obligation either to replace the vehicle or to compensate the complainant for the direct loss suffered by him on account of a vehicle suffering from manufacturing defects having been sold to him. As far as the average of the vehicle is concerned, since it depends upon a number of factors including the condition of the road, condition of the tyres, driving habits, the speed at which the vehicle is driven and the load which it carries, it would be difficult to say that the average achiever during the testing by the Commissioner indicated the manufacturing defect in the vehicle. The average promised by the manufacturers of the vehicle is achieved under ideal road conditions which certainly would not be achievable when a vehicle is driven on city roads. Therefore, failure of the vehicle to achieve the promised average cannot be said to be a manufacturing defect.
Since there were some manufacturing defect in the vehicle and some of the defective components were not replaced, the directions of the State Commission for payment of compensation amounting to Rs.50,000/- by the petitioner and the manufacturer as well as the dealer of the vehicle cannot be said to be unjustified or unreasonable, particularly when they have also been permitted to retain and sell the vehicle.
The ld. Counsel for the complainant submits that since the complainant has lost his earnings on account of his inability to use the vehicle, the compensation ought to be higher than what has been awarded by the State Commission. However, considering that the complainant has not impugned the order passed by the State Commission, such a plea cannot be entertained. The ld. Counsel for the petitioner states that as per the instructions received by him, the vehicle is lying with the complainant. However, there is no documentary evidence on the vehicle having been taken by the complainant. Moreover, the ld. Counsel for the complainant expressly denies the statement made by the ld. Counsel for the petitioner. Therefore, no note of the said statement can be taken be in these proceedings.
For the reasons stated above, I find no merit in the revision petition and the same is dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER