(Passed on 23.06.2016)
Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is filed by the original opposite party (for short O.P.) No.1 against the order dtd.17.05.2008, passed by District Consumer Forum, Gondia in consumer complaint No. 07/2008, by which, the complaint has been partly allowed.
2. The original complainant – Kanhaiya Uday Kulchandani after decision of the complaint died and his legal heirs are brought on record of the appeal as respondent Nos.1(i) to 1(iv). The case of the original complainant as set out by him in the original complaint in brief is as under.
- The deceased original complainant purchased three wheeler Auto-Rickshaw called as “Ape Pick-up Van” from the dealer – O.P.No.2 - Eros Motors, manufactured by O.P.No.1 / appellant, for consideration of Rs.1.93 Lacs. The O.P.No.3 is the service station at Gondia duly authorised by O.P.No.1 for service of product of O.P.No.1. The vehicle was purchased on 01.02.2005 by original complainant, but it worked smoothly for few months. It started giving trouble and its engine used to get heat momentarily. The warranty period of that vehicle was given for 20 months. The complainant had taken that vehicle from time to time to O.P.No.3 and thereafter to O.P.No.2 for removing the said defect in the vehicle. However, they did not remove the defects. Even O.P.No.2 recovered huge amount from the complainant for repairing. The vehicle could not be repaired by them even though it was kept in their custody for several months from time to time. Therefore, the complainant lastly issued notice dtd.30.11.2006 to O.P.Nos.1, 2 & 3 and as the defect in the engine was not removed, he filed consumer complaint against the O.P.Nos.1, 2 & 3 seeking direction to them to replace the said vehicle by new vehicle and to pay him compensation of Rs.10.00 Lacs towards loss of business sustained by him and repairing expenses and also cost of Rs.3,000/- for the proceedings.
4. The O.P.Nos.1, 2 & 3 appeared before the Forum and filed their respective written version. The O.P.Nos.1 & 2 in their written version admitted that the complainant purchased the vehicle from O.P.No.2, who is the authorised dealer of O.P.No.1 and that O.P.No.1 is also the manufacturer of that vehicle. However, they submitted that the Forum has no territorial jurisdiction to entertain and decide the complaint as no cause of action arose within its territorial jurisdiction for filing the complaint. They also denied that the O.P.No.3 is duly authorised service station of O.P.No.1 at Gondia. They denied that the vehicle has got any such defect in the engine. They admitted that the complainant had brought his vehicle to O.P.No.2 for repairing. However, O.P.No.2 repaired the vehicle to the satisfaction of the complainant and the complainant signed the satisfaction notes also. Hence, they requested that the complaint may be dismissed with cost.
5. The O.P.No.3 in its written version / reply, filed before the Forum, came with a case in brief that there is a manufacturing defect in the vehicle purchased by the complainant as it does not start quickly and its engine gets heated momentarily and said defect could not be removed by O.P.No.3 though it tried its level best. It also submitted that it is the agent of O.P.No.1. However, it contended that as it is a simple agent of O.P.No.1, it cannot be held liable for manufacturing defect and it, therefore, requested that the complaint may be dismissed with cost.
6. The Forum below, after hearing both parties and considering evidence brought on record, passed the impugned order and thereby partly allowed the complaint.
7. The Forum below while allowing the complaint, observed in the impugned order that the complainant purchased the vehicle for self employment and he is a consumer and that the complaint is not barred by limitation as it is filed within the period of two years from expiry of the warranty period.
The Forum also observed in the impugned order that O.P.No.1 vide its letter running into 10 pages appointed O.P.No.3 as it authorised service station and that the O.P.No.3 is carrying its business on behalf of O.P.No.1 at Gondia and therefore, the District Consumer Forum, Gondia has got territorial jurisdiction to entertain and decide the complaint.
The Forum below further observed in the impugned order that the complainant had taken the vehicle for more than 11 times to the workshops of O.P.Nos.2 & 3 but they failed to get it repaired by removing the defects and the starting trouble in the vehicle still persists and the vehicle was detained every time by the O.Ps for 15 to 60 days in their workshops and therefore, it is proved that there is manufacturing defect in the engine of the vehicle. The Forum therefore, under the impugned order directed the O.P.Nos.1 & 2 to change the engine of the defective vehicle with new engine of similar description and accordingly remove the defect of the vehicle free of cost within a period of one month from the date of handing over the vehicle in the workshop of O.P.No.2 by the complainant.
8. As observed above, O.P.No.1 – Manufacturer of the vehicle filed this appeal against the said order.
9. We heard learned advocate Mr Jayesh Vora for the appellant and learned advocate Mr Tiwari for the legal representatives of deceased respondent No.1 – original complainant. The respondent Nos.2 & 3 who are original O.P. Nos.2 & 3 failed to appear in appeal after service of notice and therefore, this appeal is proceeded exparte against them.
10. The sum & substance of the submission of learned advocate of the appellant is as under.
i. The Forum did not consider the material fact that the complainant purchased the vehicle purely for commercial purpose and therefore, he does not fall within the definition of “Consumer”.
ii. The Forum below ignored the material fact that the vehicle was purchased on 01.02.2005 and the warranty period was expired on 14.10.2005 and the complaint was filed beyond limitation i.e. on 02.02.2008
iii. The O.P. No.3 was not authorised or instructed by the appellant to carry out repairs of the vehicle of the complainant but the O.P.No.3 on its own accord did the repairing work and therefore, the Forum has got no territorial jurisdiction.
- In the absence of expert opinion, the Forum erred in holding the manufacturing defect in the vehicle only on the basis that the vehicle was repaired more than 11 times at the workshops of O.P. Nos.2 & 3.
- The vehicle was run up to 27,000 Kms as on 18.08.2007 and therefore, it cannot be said that there was manufacturing defect in the vehicle. But the Forum did not consider the said aspect also. The impugned order is bad in law as it is not passed after due consideration of evidence brought on record and it deserves to be set aside.
11. On the other hand, the learned advocate of the legal representatives (LRs) of the deceased respondent No.1 made submission in brief as under.
i. The vehicle was purchased for self employment by deceased respondent No.1 as he was holding driving licence for driving the vehicle.
- As per documents filed on record, the O.P.No.3 is the authorised service station of O.P.No.1 and O.P.No.3 had also tried to remove the defect but it failed and filed written version to that effect before the Forum, which is properly considered by the Forum and therefore, the Forum has got territorial jurisdiction to decide the complaint.
- The complaint is not barred by limitation and this was properly considered by the Forum.
- The vehicle was taken for repairing on 13.03.2006, 17.03.2006, 29.07.2006, 05.09.2006, 20.04.2007, 25.04.2007, 19.06.2007, 14.07.2007, 15.09.2007, 30.11.2007 and 12.12.2007 but the defect could not be removed and therefore the Forum rightly held that it is a manufacturing defect and it is rightly held that the vehicle is required to be replaced by new vehicle by same model by O.P.No.1. There is no merit in this appeal and it is liable to be dismissed.
12. So far as the territorial jurisdiction is concerned, it is rightly held by the Forum that the O.P.No.3, which is a workshop at Gondia, has been duly authorised service station of O.P.No.1 as per letter filed on record and as the vehicle was taken by the complainant to O.P.No.3 for repairing, the District Consumer Forum, Gondia has got territorial jurisdiction.
13. We also find that the Forum has rightly observed that the complaint is not barred by limitation. The vehicle was lastly taken for repairing to O.P.No.2 by the complainant on 12.12.2007 and as the manufacturing defect was not removed, the complaint was rightly filed within limitation i.e. on 02.02.2008. Hence, we do not agree with the aforesaid submission of the learned advocate of the appellant as regards the bar of limitation.
14. The material question involved in the present case is that whether it is proved from the evidence on record that there is a manufacturing defect in the engine of the vehicle purchased by the original complainant from the dealer – O.P.No.2 as manufactured by O.P.No.1 / appellant. It is seen from the various documents about repairing of vehicle, produced on record that the vehicle was taken for repairing for 11 times to O.P.Nos.2 & 3 for removal of the defect from the engine in between 13.03.2006 to 12.12.2007. The fact that the vehicle was required to be repaired for several times during the said short period and fact that defect in the engine of the vehicle could not be removed, gives an inference that there is a manufacturing defect in the engine of the vehicle. This conclusion also finds support from the statement of the authorised service station i.e. O.P.No.3. The O.P.No.3 in its reply filed before the Forum stated in clear terms that there is manufacturing defect in the vehicle and same cannot be removed.
15. In our view, as O.P.No.3 is an authorised service station, its version, that there is a manufacturing defect in the engine of the vehicle, needs to be believed. Thus, when there is such an expert opinion on record, the Forum has rightly held that as there is manufacturing defect in the engine of the vehicle, the engine is required to be replaced by new engine of the same model.
16. The appellant has relied on the letters singed by the complainant about his satisfaction in repairing of the vehicle while taking delivery of the vehicle. However, in our view, when after getting the said letter of satisfaction from the complainant, the vehicle got same type of problem repeatedly, it can be said that such a letter of satisfaction carries no weight particularly in the background of opinion given by the authorised service station i.e. O.P.No.3 for manufacturing defect lying in the vehicle could not be removed.
17. Moreover, the Forum has rightly observed that the vehicle was purchased by the original complainant for earning his livelihood by means of self-employment as he was personally driving the vehicle holding valid & effective driving licence.
18. We, thus, find no merits in this appeal and it deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to costs in this appeal.
iii. Copy of the order be furnished to both parties free of cost.
