National Consumer Disputes Redressal
Jagrut Nagrik vs The Proprietor, Baroda Automobiles ... on 14 September, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 743 OF 2010
(Against the order dated 11.11.2009
in Appeal Nos. 1302/06 and 613/06
of the State Commission Gujarat,
Ahmedabad)
Jagrut Nagrik
Through their Managing
Trustee
P.V. Moorjani
Amin Building, 3rd
Floor
Gendigate Road, Vadodara
2. Smt.Naynaben J Parikh
A/6, Devdeep Nagar Society
Old Padra Road,
Vadodara-390 007 ........
Petitioners
Vs.
1. The Proprietor
Baroda Automobiles Sales
and Service
Indira Avenue, Nr.Vishwamitri
Bridge
Vadodara (Gujarat)
2. The Manager ( Sales & Service)
M/s Premier Automobiles
Ltd.
L.B. Shastri Marg, Kurla
Mumbai-400070 ......... Respondents
REVISION
PETITION NO. 913 OF 2010
(Against the order dated 11.11.2009
in Appeal Nos. 1302/06 and 613/06
of the State Commission Gujarat,
Ahmedabad)
M/s Premier Limited
58, Nariman Bhavan, 5th
Floor
Nariman Point, Mumbai-400
021 ........ Petitioner
Vs.
1. Smt.Naynaben J Parikh
c/o Powerchem Burnpur Naka
Lehripura, New Road, Vadodara-390001
2. M/s Baroda Automobiles Sales
& Service
Indira Avenue, Vishwamitri Bridge
Vadodara
3. Jagrut Nagrik Trust
Amin Building, Gendi Gate Road
Vadodara
......... Respondents
BEFORE:
HON'BLE MR.
JUSTICE R.C. JAIN, PRESIDING MEMBER
HONBLE
MR.SURESH CHANDRA, MEMBER
For Jagrut Nagrik and Smt. Nayanben : Mr. P.V. Moorjani,
J. Parikh Auth. Representative
For Premier Ltd & Baroda Automobiles : Mr.S.K.Sharma,
Advocate
Dated : 14th
September 2010
ORDER
PER JUSTICE R.C.JAIN, PRESIDING MEMBER These revision petitions arise out of common order dated 11.11.2009 passed by the Gujarat State Consumer Disputes Redressal Commission Ahmedabad (in short, the State Commission) in appeal no.1302/06 filed by Premier Ltd. ( manufacturer of the vehicle) and appeal no. 613/06 filed by M/s Baroda Automobiles Sales and Service ( dealer and service provider of the vehicle). By the impugned order, the State Commission has partly allowed the appeals against the order dated 22.03.2006 passed by District Consumer Disputes Redressal Forum, Vadodara in complaint case no. 202/97 and has substantially modified the order passed by the District Forum. The State Commission has ordered the appellants to pay a sum of Rs.32,000/- with 9% interest from 03.11.98 till the payment besides a compensation of Rs.10,000/- towards inconvenience and mental agony. The order of the District Forum for awarding a sum of Rs.2000/- as cost of the proceedings was, however, upheld by the State Commission.
2. Dis-satisfied by the said order, the original complainants Jagrut Nagrik and Smt. Naynaben J Parikh have filed revision petition no. 743/2010 while M/s Premier Limited has filed revision petition no. 913/10. The revision petitions came up for hearing on 31.08.2010 and with the consent of the authorized representative of the petitioners in RP No. 743/10 and Mr.S.K.Sharma, Advocate, learned counsel representing the petitioner in RP No. 913/10, it was considered expedient in the interest of justice to dispose of the revision petitions at this stage itself.
Accordingly, we have heard Mr.P.V.Moorjani, Authorised Representative of the petitioner in RP No. 743/10 and Mr.S.K.Sharma, Advocate, learned counsel for the petitioner in RP No. 913/10 and we have considered their submissions.
3. This case has a checkered history which we would like to notice before we dwell on the respective submissions put forth on behalf of the parties. The complainant, Smt.Naynaben J Parikh, a resident of Vadodara had purchased a Premier Padmini 137D DLX A car on 22.11.1996 from Baroda Automobiles Sales and Services (dealer) by paying a sum of Rs.3,04,917/- besides a sum of Rs.8000/- towards handling charges etc. Soon after the purchase of the said vehicle, complainant found several defects in the vehicle in question. It was noticed that wheel alignment of the vehicle was not proper, tyres were of inferior quality, engine used to heat up, nut bolts were not properly fitted to the chasis, water in the radiator would repeatedly exhaust, water pump had to be changed, engine vibrated, leakage of the oil from radiator, doors of the vehicle could not be shut properly, there was ignition problem, consumption of diesel was excessive, brakes did not function properly, break pedal did not return to original position, sheet of the body was not OK, rubber lining were not of good quality and rainy water entered the car, AC was not working properly.
Vehicle was taken to the garage of the sales and service of dealer (Opposite Party No.2) on several occasions but despite repairs, all the defects could not be rectified. It was alleged that on one occasion when the car was at Ankleshwar Highway Road, the jumper of the car was accidentally detached on account of tearing of the bush and dislocation of nuts and when it was brought to the notice of the engineer of OP No.2, it took the matter very casually.
According to the complainant, the car in question was manufactured during strike go-slow period and had not passed through the requisite quality tests and it had several manufacturing defects as noted above. The complainant filed complaint no. 202/97 before the District Consumer Forum, Vadodara with the help of complainant no.1 Jagrut Nagrik (a voluntary Consumer Association) alleging manufacturing defect in the vehicle and adoption of unfair trade practice by the opposite parties seeking refund of the price of the vehicle or its replacement and compensation.
4. The complaint was resisted by the opposite parties i.e. the manufacturer and dealer, thereby denying any manufacturing defect in the vehicle.
The dealer had not disputed that the car in question was brought to their service center on several occasions for service and repairs but tried to explain that the said defects were removed to the satisfaction of the complainant. The District Forum on consideration of the respective pleas, evidence and the material brought on record, allowed the complaint vide order dated 22.01.2009 ordering both the opposite parties to refund the price of the car viz. Rs.3,12,917 together with interest @ 12% p.a. from the date of complaint dated 09.09.1997 besides a sum of Rs.1000/- as cost of the proceedings, holding that there were manufacturing defects in the vehicle. Aggrieved by the said order, both the opposite parties filed appeals no. 113/2001 and 614/2003 before State Commission and vide order dated 21.07.2003, the State Commission partly allowed the said appeals and remitted back the matter to District Forum Vadodara and permitted the complainants to reduce the claim of Rs.5,00,000/-. The complainants amended the complaint accordingly. The amended complaint was then tried and answered by the District Forum vide order dated 22.03.2006, this time directing the opposite parties to refund a sum of Rs.3,04,917/- together with interest @ 9% from the date of purchase dated 22.11.1996 besides compensation of Rs.10,000/- and cost of Rs.2000/-. Aggrieved by the said order of the District Forum, the dealer filed appeal no. 613/06 which was again partly allowed by the State Commission vide order dated 13.02.2007 with the direction to the complainant to send the disputed vehicle to the appellants workshop within 30 days from the date of the order and directing to the appellant-dealer to repair the disputed vehicle by changing the spare parts if needed and obtain the certificate of independent authorized auto engineer about the roadworthiness of the vehicle. Aggrieved by the said order of the State Commission, opposite party no.2 (dealer) preferred revision petition no.2380/07 before this Commission and this Commission vide order dated 05.12.2007 set aside the order passed by the State Commission and remanded the matter to the State Commission to decide the appeal on merits alongwith appeal no. 1302/06 filed by M/s Premier Ltd. Those appeals have been answered by the State Commission by means of the impugned order. In this way, this is the second round of litigation before this Commission.
5. Mr.Moorjani, authorized representative of the complainants would assail the impugned order passed by the State Commission primarily on the ground that it is not based of correct and proper appreciation of the facts and circumstances of the case, evidence and material brought on record. Plank of his submission is that there was ample material on record by way of job cards which would show that car in question infact suffered from various manufacturing defects. It is submitted by him that the State Commission has not taken notice of that material in its correct perspective and has returned an erroneous finding that there was no manufacturing defect in the vehicle as such. On the other hand, Mr.Sharma has supported the finding of the State Commission so far as it has held that there was no manufacturing defect in the vehicle in question. His contention, however, is that if even the other finding of the State Commission in regard to the other defects is upheld, it was the sales and service dealer (Opposite Party No.3) who is liable to pay the awarded amount and not the petitioner Premier Limited.
6. Copies of the job cards issued by the M/s Baroda Automobile have been brought on record. Perusal of the same would leave no doubt that several defects were pointed out about the proper functioning of the car from 17.12.96 to 27.02.98. By that time the vehicle had run for 22,728 km. By referring to these job cards, Mr. Moorjani has tried to make out a case of the vehicle in question suffering from manufacturing defects. We cannot agree with the contention even if all the defects individually or collectively are taken into account, to label them as manufacturing defects in the vehicle. In any case the complainants have not led any cogent evidence of any automobile engineer or expert to establish that the defects which were reported in the vehicle are manufacturing defect. Several of the job cards find mention that car was delivered to the complainant after her satisfaction. In these circumstances we must hold that complainants have failed to establish on record that the vehicle in question suffered from manufacturing defect or the opposite parties had adopted unfair trade practice in selling the old or imperfect car or not rendering the service when the car was taken for service / repairs. It is, however, undoubtedly established that the car suffered from one or the other defects / problems almost from the time of its purchase by the complainant, some of which persisted even after service / repairs. Some of the defects which were rectified, reappeared and continued. On these established facts, the question is as to what compensation the complainant can legitimately claim from the opposite parties. What is meant by compensation within the meaning of section 14 of the Consumer Protection Act 1986 has been considered and answered by the Supreme Court in the case of Ghaziabad Development Authority Vs. Balbir Singh [(2004) 5 Supreme Court Cases 65], as under:
The word compensation is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, compensating or being compensated; thing given as recompense;. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.
7. In the present case we have reasons to believe that complainant Smt. Naynaben J Parikh must have felt inconvenienced and harassed due to frequent breakdown of the vehicle or reoccurrence of one or the other defect(s) in the vehicle which she purchased. The State Commission did well in directing the opposite parties to refund the amount of Rs.32,000/- which the complainant had spent on rectification / repair of the defects in the vehicle. Besides the refund of amount, the State Commission also directed the opposite parties to pay compensation of Rs.10000/-
which in our opinion having regard to the entirety of the facts and circumstances of the case cannot be said to be commensurate with the loss and injury suffered by the complainant once we have noticed that complainant must have felt harassed and inconvenience for a long period due to the defects in the vehicle.
In our opinion compensation payable to the complainant should be increased to Rs.50000/- so as to make is just and reasonable.
8. So far as the liability to make the payment of awarded amount is concerned, we have no manner of doubt that the opposite parties i.e. the manufacturer of the car as well as the sales and service dealer are liable to pay the same.
However, if in the reckoning of the manufacturer, under some agreement, the liability to pay is only that of the dealer alone on the strength of such agreement it will be for them to work out the remedy for realization of the amount in case the amount is recovered from them.
9. In the result, revision petition no.
743/10 is hereby partly allowed and impugned order passed by the State Commission is modified to the extent that M/s Premier Limited and Baroda Automobiles Sales and Services are directed to pay jointly and severally compensation of Rs.82,000/- ( i.e. Rs. 32000/- as expenses incurred by the complainant in the repair of the car and sum of Rs.50,000/- as compensation towards loss injury, harassment and mental agony suffered by her) within a period of four weeks from the date of the order failing which the amount shall carry interest @ 12% p.a. Consequently, Revision Petition No. 913/10 is dismissed leaving the parties to bear their own costs.
Sd/-
(R.C. JAIN, J) ( PRESIDING MEMBER) Sd/-
(SURESH CHANDRA) MEMBER Am/