State Consumer Disputes Redressal Commission
M/S Palam Tractors vs Sh. Jamir Ahmmed & Ors. on 7 May, 2010
H
H.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
SHIMLA-9.
F.A. No.
120 of 2009 Decidedon 7.5.2010.
In the matter of :
M/s Palam Tractors,
Village and Post Office
Ner Chowk, Tehsil Sadar, District Mandi (H.P).,
Through its Manager. (authorised
dealer of
Piaggio Vehicles Private Limited).
....Appellant.
Versus
1. Sh. Jamir Ahmmed son of Sh. Bashir Ahmmed,
Resident
of House No. 61, Diara
Sector,
Bilaspur
(H.P).
2. M/s Piaggio
Vehicles Private Limited,
102, Phoenix. Bund Garden Road,
Pune-411001.
..Respondents.
.
Present : Mr.
Ratish Sharma, Advocate
vice counsel for the appellant.
Mr.
Vijay Vir Singh, Advocate
for respondent No.1.
Mr.
Ajit Jaswal, Advocate
vice counsel for respondent No.2.
..
F.A.No . 167/2009
Piaggio Vehicles Private Limited,
SCO 2907-2908, Sector
22-C,
Chandigarh-160022,
through its
Deputy Manager (Service), Sh. Uma Shankar Sahu.
.Appellant.
V/s
1. Sh. Jamir Ahmmed son of Sh. Bashir Ahmmed,
Resident of House No. 61, Diara
Sector,
Bilaspur, Tehsil
and District Bilaspur (H.P).
2. M/s Palam Tractors, Village and Post Office
Ner Chowk, Tehsil
Sadar, District Mandi
(H.P).,
Through
its Manager (authorised dealer of
Piaggio Vehicles Private Limited).
Respondents.
.2
Present : Mr.
Ajit Jaswal, Advocate
vice counsel for the appellant.
Mr. Vijay Vir
Singh, Advocate
for respondent
No.1.
Mr. Ratish Sharma,
Advocate
vice counsel for
respondent No.2.
.
F.A.No . 202/2009.
Sh. Jamir Ahmmed son of Sh. Bashir Ahmmed,
Resident of House No. 61, Diara
Sector,
Bilaspur, Tehsil and
District Bilaspur (H.P).
.Appellant.
V/s
1. M/s Palam Tractors, Village and Post Office
Ner Chowk, Tehsil
Sadar, District Mandi
(H.P).,
Through
its Manager (authorised dealer of
Piaggio Vehicles Private Limited-102, Phoenix
Bund Garden Road,
Pune, Maharashtra-411001,
Through
its General Manager.
2.
Piaggio Vehicles Private Limited-102,
Phoenix Bund Garden Road, Pune,
Maharashtra-411001, through its General Manager.
..Respondents.
.
Present : Mr.
Vijay Vir Singh, Advocate
for the appellant.
Mr. Ratish Sharma,
Advocate
vice counsel for respondent No.1.
Mr. Ajit Jaswal, Advocate
vice counsel for respondent No.2.
-----------------------------------------------------------------------------------------------------
Honble Mr. Justice Arun Kumar Goel (Retd.), President.
Honble Mrs. Saroj
Sharma, Member.
Honble Mr. Chander
Shekher Sharma, Member.
Whether
approved for reporting ?
----------------------------------------------------------------------------------------------
ORDER
Justice Arun Kumar Goel (Retd.) President.
1. All these appeals are directed against the order passed by District Forum, Bilaspur in Consumer Complaint No. 144/2006, as such these were heard together and are being disposed of by this order.
2. Jamir Ahmmed, hereinafter to be referred to as, the complainant filed the complaint against Palam Tractors, hereinafter to be referred to as the O.P.No.1 and also against Piaggio Vehicles Pvt. Ltd., hereinafter to be referred to as the O.P No.2, alleging deficiency in service against both of them before the District Forum below.
3. This complaint was allowed on 18.3.2009 in the following terms :
12. The opposite parties are jointly and severally ordered and directed to replace the engine of the vehicle three wheeler (Auto Rickshaw) bearing registration No. HP 24 B-0266 purchased by the complainant from the opposite party No. 1 on 18.2.2005 vide bill/cash memo No. 727, dated 18.2.2005 copy annexure C-1 with new engine free from any defects within 7 days from the date of producing the three wheeler in the workshop of the opposite party No.1 failing which the complainant shall be entitled to refund of the cost of three wheeler to the tune of Rs.
1,89,900/- with interest at the rate of 9 per cent per annum from the date of filing of the complaint i.e. 10.10.2006 till realization. The complainant shall also be entitled to compensation for causing harassment and financial loss, which we assess at Rs. 20,000/- besides cost of the complaint in the sum of Rs. 2,000/-. The complaint stands disposed of accordingly.
4. Complainant has filed appeal for enhancement of compensation and cost, whereas common prayer made by OPs No. 1 & 2 in their appeals is that the vehicle in question was purchased for commercial use by the complainant and not for earning his livelihood as such he was neither a consumer nor anyone of them to be a service provider. As such there was no consumer dispute between the parties.
Therefore, according to both of them, District Forum below erred while passing the impugned order. Both of them have prayed for allowing their appeals by setting aside the impugned order, and consequently dismissing the complaint.
5. In the alternative and without in any manner admitting/conceding the claim of the complainant, a plea has been raised by OP No.1 to the effect that as per averments made in the complaint this being a case of manufacturing defect, liability if any, should be fastened upon OP. No2, the manufacturer of the vehicle in question.
6. Before dealing with the respective contentions urged on behalf of the parties, admitted facts necessary for deciding these appeals may be noted. OP.No.1 is the authorized dealer of OP No.2 for the sale and service of the Cargo-Ape-D-810, three wheeler pick/up van, OP. No.2 is its manufacturer. Vide Annexure C-1, the complainant purchased this vehicle from OP No.1 on payment of Rs. 1,89,900/-. This vehicle was under warranty for a period of 270 days.
7. Record of the complaint file shows that right from beginning complainant was making a grievance regarding defects etc. in the engine from time to time and had taken it to OP.No.1 to Ner Chowk from Bilaspur. It is admitted between the parties that when the defects could not be removed which continued to persist, an Engineer was deputed by OP.No.2 to examine the vehicle in question. It is a specific case of OPs that on the advice of the Engineer, the engine of the vehicle was replaced by OP No.1. In this context Sh. Ratish Sharma, learned counsel for OP NO.1 stated at the bar that this replacement was done by his client, at the instance of, as well as at the cost of OP No.2. Fact remains that the engine was replaced by OP No.2. It is again not disputed that after replacement of engine by the OPs its warranty was extended for a further period of 270 days.
8. Miseries of the complainant did not come to an end after replacement of the engine in October, 2005 because even the replaced engine had defects. This resulted in his again approaching respondent No.2. Per his version, he was informed by this OP, that the defect was due to chamber reason which is a manufacturing defect at the time of its installation.
9. In February, 2006 complainant again approached OP No.1 regarding engine of the vehicle not functioning properly. At this juncture the vehicle was retained by OP.No.1 and it remained in its workshop for about 4 months. For removing the defects, O.P No.1 charged Rs. 10,000/- despite resistance by the complainant, because the vehicle was under
warranty and thus his being not liable for the payment.
10. Further case of the complainant is that in August, 2006, the vehicle went out of order, therefore, he again approached OP No.1 for replacement of the vehicle with new one. Reason for making such claim by the complainant was that from the day one the vehicle was not functioning properly, and then even after replacement of the defective original engine in October, 2005 the defects persisted, for the removal whereof vehicle was with the OP No.1 for more than 4 months while it was under warranty.
11. In this background complaint was filed for deficiency of service on account of manufacturing defect, as well as on refusal on OP No.1 to replace the defective vehicle with a new one. In the complaint prayer was made seeking directions against the OPs firstly to replace the vehicle or to pay Rs. 1,89,900/- with interest @ 12% per annum from the date of purchase of said vehicle, alongwith Rs. 1 lacs on account of damages for mental harassment, agony etc.
12. When put to notice, both the OPs resisted and contested the claim of the complainant while admitting the sale of vehicle, both pleaded that the District Forum had no jurisdiction to entertain the same. Complaint was not maintainable under Consumer Protection Act, 1986, because the vehicle was being used for commercial purpose. Complaint was not maintainable for non-joinder of necessary party, i.e. the financier. Complainant had no cause of action and was also estopped by his act and conduct, the complaint was barred by time. At the same time while admitting the sale of vehicle, it was pleaded that the complainant did not ply the same as per norms of the Company, because it was overloaded and was not properly maintained. Defect in the engine of the vehicle was admitted being a manufacturing defect but its chamber being defective was denied. Reason for such defects given was, that both were damaged by the complainant due to negligent driving even after engine had been replaced. Charging of Rs.
10,000/- was admitted by O.P.No.1 but it was denied that vehicle remained with OP No.1 for repair for more than 4 months. Amount charged was genuine. Further according to OP No.1 the thermostat of the vehicle was found tempered on 31.7.2006. In these circumstances it was submitted that complaint was liable to be dismissed.
13. In the rejoinder to the reply of the OPs, complainant had specifically pleaded that he had purchased the vehicle to earn his livelihood being un-employed youth
14. We shall first take up plea of OPs that District Forum below had no jurisdiction to entertain, muchless decide the complaint in question. Reason being that the vehicle was purchased at Ner-Chowk, in District Mandi. Therefore the complaint if any, could be maintained before District Forum, Mandi.
15. This plea is being noted to be rejected for the reasons to be recorded hereinafter. Complainant has specifically pleaded that the vehicle after purchase was got financed from H.P.State Co-operative Bank, Bilaspur and its Registration Certificate is Annexure C-2, which clearly shows that it is registered with the Registering and Licencing Authority, Bilaspur. This being the factual position which was not disputed at the time of hearing, then in our opinion the District Forum, Bilaspur had to entertain the complaint in question.
For taking this view we are supported by decisions of this Commission, in Pradeep Kumar Khurana V/s M/s Wheels Words, 1997 (1) CPC 312, Narinder Kumar Sood V/s Punjab Motors Kurali and Others, latest HLJ, 2004 (H.P) 1378 and Tata Motors V/s Chuni Lal & Ors.
and connected cases 2009 (1) CPC 382.
16. Now coming to the next plea urged on behalf of the OPs that complainant was not a consumer, within the meaning of section 2 (1)(d) of the Consumer Protection Act, 1986. We have already noted the facts set out in paragraph-2 of his rejoinder to the reply of the complaint by the complainant. He had specifically pleaded that the vehicle was purchased by him for earning his livelihood as he was a un-employed person. This plea has remained un-controverted on the record on the part of the OPs therefore, the case of the complainant is covered by section 2(1)(d) explanation that was added to be Central Act No. 62 part of 2002, which came into force w.e.f 15th March, 2003. Therefore, it is held that complainant is a consumer and OPs are service providers.
17. Now coming to the question whether there was manufacturing defect in the vehicle or not. On the admitted facts as briefly noted hereinabove, particularly after examination of the vehicle by Engineer of OP No.2 in September, 2005, OP No.1 admittedly replaced the defective engine, this compels us to invoke the doctrine of res-ipsa loquitor. Suffice it to say in this behalf, that respondent No.2, would not have replaced the engine in case there was no manufacturing defect in the original engine.
18. We are further of the view that OPs do not plead that the complainant had any ill-will on his part against anyone of them. We see no reason for the complainant to make a grievance every now and then regarding there being defects in the engine and having been pointed out by OP No.1after replacement of engine in October, 2005, that it was due to the defect in the chamber at the time of its installation.
Vehicle remained for more than 4 months with OP No.1 when it charged Rs. 10,000/- for removal of defect, despite the same being under warranty after replacement of engine in October, 2005 as aforesaid. We specifically called upon learned counsel for OP No.1 as to how sum of Rs. 10,000/- was charged for removal of defects during warranty period, his only answer was that there was no defect that was covered under warranty therefore, according to Mr. Ratish Sharma, learned counsel for OP No.1 amount charged by his client from the complainant was legally valid and no exception can be taken to it.
This plea is being noted to be rejected.
19. In the light of the above facts stand of the OPs that there was no manufacturing defect in the vehicle is also belied, as according to both of them vehicle was being over loaded and was also being mis-handled by the complainant when he was plying it. As such defects occurred due to such mis-handling and over loading on the part of the complainant. We are constrained to observe, that this is all a cooked up story in the peculiar facts this case being put up by both the OPs to get rid of their acts of omission and commission of having supplied a vehicle with manufacturing defects.
At the risk of repetition, we re-iterate that if there was no manufacturing defect, then why the OP No.2 asked OP No.1 for the replacement of the engine free of cost. Extended warranty as per certificate Annexure C-18 would be valid upto 6th July, 2006. For more than 4 months vehicle was detained by OP No.1 when it was left for removal of defects under warranty period with it by the complainant as is noted hereinabove. In these circumstances warranty in our opinion would remain in a suspended state so long the vehicle was with OP No.1. Once this conclusion is arrived, then the plea of OPs, that the vehicle was not under warranty when it was brought to OP No.1 in August, 2006 for repairs, as such none of them is liable to indemnify the complainant does not hold good for the view that we have taken in the preceding paras on the facts of this case.
20. In the totality of the circumstances of this case, we are of the confirmed view that the vehicle was jinxed from day one. This view is reinforced by the fact that its defective engine was first replaced in October, 2005 and even thereafter miseries of the complainant did not came to an end. Therefore, submissions to the contrary that there were no manufacturing defects urged on behalf of the OPs merits rejection, ordered accordingly.
21. Now coming to the alternative submission urged on behalf of O.P No.1, that this being a case of manufacturing defect, as such O.P No.2 is liable to indemnify the complainant. Though Mr. Ratish Sharma, learned counsel for OP No.1 drew out attention to decisions in Hindustan Motors Ltd. And Another V/s N. Siva Kumar And Another (2000) 10 Supreme Court Cases 654, Mahindra & Mahindra Ltd. V/s Vasantrao Dagaji Patil & Anr. III (2002) CPJ 79( NC), Laxmi Automobiles V/s Lal Kunwar Choudhary & Anr. 1 (2006) CPJ 54 (NC) as also to a decision of this Commission in Appeal No. 187/2005 M/s Shimla Automobiles Pvt. Ltd., & Anr. V/s Sh. Bhagwan Dass Jaswal & Anr. and connected appeal, decided on 5.4.2008.
22. After taking note of all these decisions, we hold that OP No.1 was in the first instance would indemnify the complainant and thereafter on the strength of the order it will be entitled to execute the same against OP No.2 by filing execution in accordance with law. This direction we are issuing, because otherwise it will add to the miseries to the complainant, whereas OP No.1 is the authorized dealer for sale service of vehicles manufactured by OP No.2.
23. Now coming to Appeal No 202/2009. We are of the view that the compensation awarded to the complainant in the facts as noted hereinabove needs to be enhanced. Thus the complainant is also held entitled to punitive damages in the background of this case as well as cost of these appeals. In the light of the fact that right from the date of purchase of the vehicle, the complainant had taken the vehicle in question to OP No.1 on a number of occasions for the removal of recurring defects. Further according to him he even took the vehicle to authorized dealer of OP No.2 at Chandigarh, who informed him that engine was not in a good running condition i.e. it was light one. Therefore, while enhancing the compensation from Rs. 20,000/- to 40,000/-, the complainant is also held entitled to punitive damages quantified at Rs. 10,000/- besides cost of these appeals, assessed at Rs. 3,000/-.
24. No other point was urged.
25. In view of the aforesaid discussion while modifying the order of the District Forum, Bilaspur in Consumer Complaint No. 144/2006, decided on 19.3.2009, it is now held as under :-
a) the compensation is enhanced from Rs. 20,000/- to Rs. 40,000/- ;
b) in addition to this complainant is also held entitled to punitive damages quantified at Rs. 10,000/-;
c) OPs 1 & 2 shall pay a lump-sum of Rs. 3,000/- as cost of these appeals to the complainant ;
d) directions regarding replacement of engine with entirely brand new one free from all defects within 7 days of production of vehicle at the workshop of OP No.1 failing which both the OPs are held liable for refund of Rs. 1,89,900/- with interest @ 9% per annum as awarded by District Forum below is upheld ;
e) liability of both the OPs is held to be joint and several subject to what held hereinbelow ; and
f) it is further ordered that in the first instance, OP No.1 shall comply with the aforesaid directions issued in this order and after having done the needful, it shall be entitled to execute this order against OP No.2 by filing execution before District Forum below. This direction has been issued to mitigate the hardship to the complainant and looking to the commercial relationship between OP No.1 on one side and OP No.2 on the other.
26. Office is directed to place authenticated copy of this order on the files of Appeal Nos. 167/2009 and 202/2009.
27. All interim orders passed from time to time in Appeal Nos. 167/2009 and 202/2009 shall stand vacated forthwith.
28. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) (Retd.) President ( Saroj Sharma ) Member (Chander Shekher Sharma) Member Suneera 7.5.2010