State Consumer Disputes Redressal Commission
Managing Director / General Manager, ... vs Mr. Santosh Suryawanshi on 17 April, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/07/776
(Arisen out
of Order Dated 25/04/2007 in Case No. 253/2005 of District Kolhapur)
1. Managing Director / General Manager, M/s. T.V.S.
(Division of Mohan Auto Industries Pvt. Ltd.)
Office at 517-E, Pune-Banglore Road, Kolhapur
Maharashtra
2. Managing Director / General Manager, T.V.S. Motor
Company Ltd.
Jivani
Mansion, Gate No.
2347/B/23, Pune-Ahmednagar
Road, Vagholi, Pune - 412 207.
Pune
Maharashtra
3. Managing Director / General Manager, T. V. S. Motor
Company Ltd.,
P. V. No. 4, Harita Hosur - 635 109.
...........Appellant(s)
Versus
1. Mr. Santosh Suryawanshi
R/o. 320-E, New Shahupuri, Kolhapur.
Maharashtra
...........Respondent(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Mr.Harihar Bhave,Advocate, Proxy for Bhave & Co.,
Advocate for the Appellant
Mr.Umesh S. Mangave, Advocate for the Respondent.
O R D E R
Per Mr.S.R. Khanzode Honble Presiding Judicial Member:
(1)This appeal takes an exception to an order dated 25.04.2007 passed in Consumer Complaint No.253/2005 (Santosh Jaywantrao Suryawanshi V/s. Managing Director/General Manager, MAI.TVS & Ors.) by the Consumer Disputes Redressal Form, District Kolhapur (the Forum in short).(2)
The complaint refers to defect in TVS Victor Motor Cycle manufactured by TVS Motor Company Ltd. ( Tamilnadu State), and it was purchased by Complainant Santosh Jaywantrao Suryawanshi (hereinafter referred to as the Complainant) on 15.10.2002 bearing Registration No.MH-09-AF-7110. The Forum while allowing the complaint was pleased to direct Opponents to replace the vehicle or alternatively refund `46,984/- in addition to it, the Forum also directed the Opponents to pay `3,000/- as compensation towards mental torture to the Complainant in addition to it further pay costs of `500/- was awarded. Feeling aggrieved thereby the Opponents preferred this appeal.(3)
The facts of purchasing the motor cycle by the Complainant and its registration are not in dispute. According to Complainant there was leakage of engine oil from the engine and according to him it was a manufacturing defect. On 20.11.2002 he accordingly left vehicle for first servicing. The complaint was not rectified. Again on 11.12.2002 the vehicle was given for repairs to MAI TVS (Division of Maharashtra Auto Industries Pvt. Ltd. at Kolhapur). However, the defect could not be rectified. The same state of affairs even continued on 15.01.2003. On 22.01.2003, the engine body of the vehicle was replaced. However, there was no improvement in the performance of the engine and the leakage of the engine oil continued as well as the vehicles peak-up and the average got affected. Therefore, again when further complaint was made on 28.05.2003, the engine of the vehicle was replaced with another engine. It was further noticed that said replaced engine had no engine number embossed on it and this fact was brought to the notice of Opponent No.1. They gave promise to emboss the engine number but in vain. It is a further grievance of the Complainant that since the replaced engine bears no number, he could not take up the matter for registering conversion to R.T.O. and also could not take the insurance and therefore, could not use the vehicle.
According to Complainant since the vehicle was beyond the repairs, he filed the consumer complaint to get replacement of the vehicle or alternatively refund of the consideration paid along with further compensation towards mental torture and costs.
(4)Opponents (as per their written version) denied the allegation made in the consumer complaint. They categorically denied that there was any defect in the original engine. It is submitted that engine was replaced on 28.05.2003 to maintain goodwill and to maintain customer relations and not because of any defect in the engine.
Referring to the free service reports and the job cards, it is submitted that whatever the grievances made by the Complainant from time to time were properly redressed and the consumer complaint is filed without any substance. The fact that the replaced engine bears no engine number is not in dispute. However, it is tried to be submitted that it is the responsibility of the Complainant to get the conversion recorded in the registration book and for which no deficiency in service on the part of the Opponent could be alleged. It is further denied that the Complainant had at any time made a grievance about the absence of any engine number of replaced engine.
(5)Heard both sides.
(6)We have carefully gone through the material placed on record interalia including copies of the job cards including those witnessing free servicing. These job cards are not in dispute. Referring to the first servicing which was carried out as free servicing on 20.11.2002, no defect in the engine was noticed and so also there was no oil leakage from the engine. The check-up on 11.12.2002 was routine check-up. On 15.01.2003 Complainant visited Opponent No.1 to enquire about periodical maintenance and for owners manual. The information was supplied. It is submitted that on 22.01.2003 the Complainant never attended or visited the Opponents. Complainant failed to show that on 12.02.2003 any engine was replaced (as alleged by him).
On 12.02.2003 second servicing was carried out. It refers to the general check-up and for the first time it was mentioned that there was block leak. The complaint was attended and Complainant while taking delivery had recorded certificate to the effect that the vehicle was duly serviced/repaired to his entire satisfaction. Thereafter, on 12.06.2003 the vehicle was presented with complaints of engine knocking, low pick-up, rear shock-up check for hard, rear and front tyre chock, speedo meter check and general check. It appears that at that time engine assembly was replaced amongst other work carried out and again while taking the delivery the Complainant recorded certificate of satisfactory service and repair work carried out. Next job card is dated 20.08.2003 recording third servicing which is free servicing and during said servicing the jobs viz. general check-up, oil filter change were attended and the work was satisfactorily carried out as even certified by the Complainant. This would show that the grievances which were made from time to time were attended to the satisfaction of the Complainant and this material do not reflect or even indicated any manufacturing defect in the vehicle as tried to be inferred by the Complainant. In fact there is no material on record to show that first engine which was replaced or even replaced engine have any manufacturing defect.
(7)The Complainant tried to infer defects in the replaced engine as more appropriately stated by him in his notice dated 01.09.2003, You No.1 has changed engine of the motor cycle. But the engine fitted by You No.1 is not original and is defective one. It is also observed by my client that the engine fitted by You No.1 is old and supplicate and not new and hence the defect of the engine might not have been overcome.
(8)This is not the material on the basis of which an inference could be drawn about the manufacturing defect in the engine. The earlier engine is not available for inspection or to show that there was a defect in the said engine. However, once it is replaced one has to consider the case of defect in engine only in respect of replaced engine and which does not show any manufacturing defect relating to the functioning of the same. Therefore, the inference drawn by the Forum about the manufacturing defect in the replaced engine is, per se, erroneous and wrong.
(9)Thirdly, no circumstances, as revealed from the record, exists to show that it is a case to dispense with the provisions of Section 13 of the Act in respect of defect of the goods. It is submitted on behalf of the Opponents that the engine of the vehicle was replaced with the new engine for the reasons mentioned, supra. Section 39 of the Motor Vehicles Act 1988 (hereinafter referred as the Vehicle Act for the brevity) speaks for necessity for registration and stipulates a restriction, No person shall drive any motor vehicle and no owner of the motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries the registration mark displayed in the prescribed manner.. The vehicle in question, admittedly, was not in possession of the dealer but in possession of the Purchaser/owner of the vehicle. Mention of engine number is one of the essential requirements in the registration book. Any alteration in the motor vehicle is controlled by Section 52 of the Vehicles Act and it placed an obligation on the owner of the vehicle to report the particulars of such alterations/modifications to the registration authorities. The Provisions as to the chasis number and the engine number are further controlled by Rule 122 of the Central Motors Vehicle Rules 1989, which specifies about the embossment of the chasis number and the engine number as well as the date of manufacture of the vehicle. It is an obligation on the manufacturer of the vehicle to provide these particulars on the vehicle in a particular/specified manner. Further, it is a obligation of the vehicle manufacturer to intimate the Certifying Testing Agency regarding the place where the numbers shall be embossed or attached or punched including the code for the year and month of production in respect of each model and such testing agency thereafter shall include these details in the certificate of compliance granted by that agency under Rule 126. It is an obligation on the manufacturer to note the change, the place of embossing or punching and the code for the month and year of production without prior intimation by register post to the testing agency which granted the certificate of compliance under the rules.
(10)Under the circumstances, as referred earlier, the engine (may be by way of act of gratis or to maintain proper business relations) is replaced on behalf of the manufacturer of the vehicle; it is not contemplated that it should not bear any engine number. Further while replacing the engine the particulars of the engine replaced, the date of its manufacture as well as other necessary particulars (necessary for the purpose of registration) ought to have been supplied to the Owner of the vehicle by the manufacturer of the vehicle. Opponent No.1 (for the manufacturer) who according to Complainant had carried out the job of replacement of the engine, such particulars, failed to supply these particulars. The defence that the complainant did not ask for them, will not provide any shield to the manufacturer of the vehicle or to Opponent No.1 who replaced the engine because it is a statutory obligation to provide such information to the owner of the vehicle viz. the Complainant. The Complainant was under
obligation under section 52 of the Vehicles Act to inform the registration authority about such change, only if such information is supplied by the manufacturer.(11)
The complaint in effect is filed against the manufacturer of the vehicle. Therefore, describing opponent No.1, the Managing Director/General Manager of particular company is a mis-description. The complaint is also contested and even the appeal is filed and contested for and on behalf of the manufacturer of the vehicle only. Therefore, we prefer not to give much weightage to this technical aspect of description of the party in the background of this particular case. Even the point referring to such mis-description is not raised by either of the parties. Of course, we do feel that description of the party is not a mere technical defect but is a substantial defect in order to assess the alleged deficiency in service which is to be judged as per the provisions of Section 2(1)(g) or defect in goods as per Sec.2(1)(f) of the Act. In case of manufacturing defect in the vehicle, it is the manufacturer of the vehicle is important while in case of deficiency in service the persons name is important since the deficiency in service is to be judged on the basis of obligations either contractual or statutory, in respect of said person against whom the action is brought.(12)
The Forum granted the relief of replacement of the vehicle when particularly there is no manufacturing defect is established.
In the facts and circumstances of the case, when engine could be replaced, there is no need to replace entire vehicle and, certainly, no question of returning the price of the vehicle would arise. Thus, while granting the reliefs as per the impugned order, the Forum exceeded its jurisdiction and traveled beyond the scope of its section 14 of the Act and, thus, committed an error of law.(13)
However, looking to the circumstances of the case and to settle the dispute in just and proper manner, it would be proper if the impugned order is modified and in spite of replacement of the vehicle or in the alternative to direct to return the consideration paid; it would be just to direct either to provide engine number with necessary specifications as per the rules under the Vehicles Act or replace the engine of same make having embossed on it the particulars as to the engine number. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) Impugned order dated 25/04/2007 is modified. In the operative order of the impugned order paragraph no.1 is substituted as follows:
Opponents do provide engine number to the replaced engine and supply the necessary particulars thereof to the Complainant.
OR Alternatively, replace the engine of the vehicle with same make engine containing Engine Number and supply necessary particulars thereof to the Complainant.
(iii) Except for this modification rest of the order stands confirmed.
(iv) In the given circumstances parties to bear their own costs.
Pronounced on 17th April, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER ep