KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISISON, VAZHUTHACAD, THIRUVANANTHPAURAM APPEAL NO.430/2004 JUDGMENT DATED: 7.5.09 Appeal filed against the order passed by CDRF, Kollam in OP.483/03 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER P.Robert, : APPELLANT R.R.House, Perumon.P.O., Perinadu, Kollam. (By Adv.Sree Ranganadhan) Vs. 1. Bajaj Tempo Ltd., : RESPONDENTS Akurdi, Pune – 411 035, India. (By Adv.chirayinkil C.P.Bhadra Kumar) 2. Smoothsel, P.B.No.291, Hospital Road, Kollam. (By Adv.Dinesh Sajan.K) 3. Kamala Motors & Ltd., Town Limit, Kadappakkada, Kollam. JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER Aggrieved by the dismissal of the complaint in OP.483/03 in the file of CDRF, Kollam vide the order dated 22.3.04, the complainant has preferred this appeal calling for the interference of the Commission as to the sustainability of the order passed by the Forum below. 2. The complainant approached the Forum alleging that the 1999 Model Bajaj Tempo Pickup vehicle purchased by him for a total price of Rs.1,53,730/- was having manufacturing defects and that inspite of repeated repairs the vehicle could not be repaired completely to the satisfaction of the complainant and hence he filed the complaint before the Forum for directions to the opposite parties to replace the vehicle or to pay the amount of Rs.1,53,730/- along with the repair charges of Rs.31615/- with compensation and cost. 3. The 1st opposite party filed version contending that though they are the manufacturers of he vehicle in question, the 2nd opposite party who was the dealer at the time of purchase had sold the vehicle and the relationship between the 1st and 2nd opposite parties was on principal to principal basis and contending that there was no deficiency in service they prayed for the dismissal of the complaint. 4. The 2nd opposite party filed version contending that though they have sold the vehicle, they were terminated on 17.10.2000 and the 3rd opposite party was appointed as the authorized dealer and hence they are not liable to any payments towards compensation or refund of the price of the vehicle. It was also contended by them that it was after the expiry of the warranty period that the complainant brought the vehicle to the workshop for repairs and it was on 1.11.2000 that the vehicle was seen by them. It is the further case that the works done by the 2nd opposite party was in full satisfaction to the complainant and the vehicle supplied had no inherent defects. They also prayed for the dismissal of the complaint. 5. The 3rd opposite party in his version contended that they came to the picture only from 9.11.2000 and the disputed vehicle was purchased from the 2nd opposite party and hence the 3rd opposite party was not a necessary party and raising the said contention they requested for dismissing the complaint. 6. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.P1 to P4. From the side of the opposite party DW1 was examined and D1 series were marked as exhibits. An expert Commission was appointed by the Forum who filed his report as Ext.C1. It is based on the report of the Commissioner and also on considering the facts and the circumstances of the case that the Forum has dismissed the complaint against which this appeal is preferred. 7. We heard the counsel for the appellant and the respondents. 8. The learned counsel for the appellant vehemently argued the case based on the grounds urged in the memorandum of the present appeal. It is his very case that Ext.C1 report was not properly appreciated by the Forum below and advanced the contention that the Forum ought to have allowed the complaint in toto. He invited our attention to Ext.C1 report wherein it is stated that the life of the engine was reduced considerably and there was reduction in milege after every engine overhauling. The learned counsel tried to impress us that the engine had manufacturing defect and the only remedy is substitution of the defective engine. It is also his case that 9 major works were carried out by the opposite parties 2 and 3 and inspite of the engines works the defects were not cured completely and that out of the 9 major works, 6 of the major works were engine overhauling and the learned counsel advanced the contention that if engine had no defects frequent overhauling would not have been necessitated and in every overhauling the engine life is affected. He has also argued that the said fact is supported by the expert Commissioner in his report. The learned counsel advanced the contention that one is buying a new vehicle not to frequent to the workshop every now and then and it is for a trouble free running that a new vehicle is purchased by complainant instead of buying an old vehicle. Thus he argued for the position that the complainant was put to misery and hardships apart for financial loss and hence the Forum ought to have allowed his complaint or atleast a compensation would have been ordered. 9. On the other hand the learned counsel for the 1st and 2nd respondents supported the findings and conclusions of the Forum below. It is his very case that the vehicle had run a considerable milege of 57000 KMs at the time of inspection and the complainant had not raised any complaint during the warranty period. It is also argued by them that the vehicle had no manufacturing defects. The vehicle was plied extensively by the complainant and only the required repairs were done in the workshop of the 2nd and 3rd opposite parties. It is also argued by them that the vehicle is still in working condition and hence they prayed for the dismissal of the appeal also. (There was no representation for the 3rd respondent/opposite party). 10. On hearing the learned counsel for the appellant and 1st and 2nd respondents and also on A perusal of the records, we find that it is the admitted case of all the parties THAT the vehicle was purchased by the complainant on 27.12.99 and the vehicle was subjected to major repairs including overhauling. The opposite parties would argue that the vehicle had run considerable distance and it was because of the extensive running that the overhauling and other repairs were carried out. It is to be found that Commissioner had reported that 9 major works were carried out in the vehicle by the authorized dealers and the life of the engine was reduced to
3 ½ months and there was considerable reduction in milege after every engine overhauling. Though the respondents/opposite parties would argue that it was very common to have repairs on vehicleS which run extensively we are not inclined to accept such contentions of the respondents. The opposite parties have not adduced any contra evidence to the findings and the conclusions of the Commissioner. We find that the commissioner has reported major defects in the engine. At this point of time and after having considered the fact that vehicle is running even now though with frequent repairs, it will be hard if we direct the opposite parties to replace the engine with a new one. But we find that there was some defect in the engine which could not be repaired completely. We also feel that complainant was put to hardships and financial loss because he was stranded in the workshop frequently and in such a situation the complainant is liable to be compensated by the opposite parties. The Forum has dismissed the complaint finding that there is no deficiency on the part of the opposite parties. But we find that it is because of the deficiency in service and the defect in the engine that the complainant had to approach the 2nd and 3rd opposite parties every now and then. The manufacturer may contend that as there is no manufacturing defect is not liable to pay any amount towards manufacturing defect. The expert commissioner has in unequivocal terms reported that the engine had manufacturing defect and the only remedy is substitution of the defective engine. In such a circumstance we find that the manufacturer will also be liable for the payment of the compensation. In the aforesaid circumstances we find that a sum of Rs.25000/- will be just and proper to be paid by the opposite parties as compensation to the complainant. In the result the appeal is allowed in part and the order dated 22.3.04 in OP 483/01 of CDRF, Kollam is set aside. Thereby the respondents/opposite parties are jointly and severally directed to pay a sum of Rs.25000/- to the appellant/complainant by way of compensation. The respondents/opposite parties are also liable to pay costs which we fix as Rs.2000/- for the proceedings through out. The above amounts are to be paid within a month on receipt of a copy of this order failing which the amount shall carry interest at the rate 12% per annum from the date of complaint till the date of payment. SRI.S.CHANDRAMOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER ps
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