JUDGMENT 25.11.2010 Justice Pritam Pal, President 1. The aforementioned two appeals arise out of one and the same order dated 15.4.2002 passed by the District Consumer Forum- Sangrur whereby complaint bearing No.260 of 1999 filed by complainant Gurnam Singh was allowed and opposite parties were directed to replace his Mahindra Armada Jeep bearing Registration No.PB-13-G-2791 with a new jeep of the same make in good condition within three months from the date of communication of the order. Since, these appeals filed by the manufacturer as well as the dealer of the Jeep in question are directed against the one and same impugned order and in both appeals common questions of law and facts are involved, so, we propose to decide these appeals by this common judgment. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus ; The complainant purchased Mahindra Armada Jeep for his personal use and for the purpose of using the same for self employment and for earning his livelihood, vide bill dated 24.7.1998 from M/s P.K.Motors Pvt. Limited, Patiala through its branch office situated at Mehlan Road, Sangrur. In the month of October,1998 the jeep started giving trouble of brakes and on approaching OP NO.2, its mechanic told that it had manufacturing defect in the brakes. Accordingly the brakes were got repaired on payment of Rs.1584.46. Another part of the Jeep was also replaced by the mechanic of OP NO.2 for which a sum of Rs.330.78 was charged. On 16.11.1998, while the jeep was in running condition its ball bearing stopped for which he had to spend Rs.398/- plus Rs.200/- as labour charges. On 22.3.1999, the engine of the jeep stopped working and the vehicle was taken to OP NO.1 where repairs were carried out and complainant was charged Rs.13701/-. Thereafter, the engine again stopped working due to defect in the head gasket which was replaced on the instructions of OP NO.2 by incurring Rs.1850/- as its price plus Rs.400/- as labour charges on 1.2.1999.The mechanic who changed the head gasket told to the complainant that the engine was defective one and the said problem could arise at any time again and the jeep could not run properly until its defective engine was not replaced which was having manufacturing defect. The complainant requested OPs to replace the jeep and to refund the money which they had charged for repairing the vehicle but to no effect. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint before the District Forum, Sangrur seeking replacement of the jeep with a new one or in the alternative replacement of the defective engine, refund of amount incurred for getting the jeep repaired besides compensation and costs of the complaint. 4. On the other hand, the case of OPs NO.1 & 2 before the District Forum was that there was some defect in the engine of the jeep which was properly attended and after thorough checking necessary parts were replaced/repaired. Though some of the parts replaced did not come under the warranty, so as a gesture of goodwill a cheque for Rs.10544/- was given to the complainant. It was pleaded that the defects had not arisen because of any manufacturing defect but because of mishandling of the vehicle by the complainant. The other allegations were denied and prayed for dismissal of the complaint. 5. The manufacturer of the vehicle- OP No.3 also filed reply before the District Forum stating therein that the vehicle had been used for commercial purpose and as such complainant was not a consumer. There was no manufacturing defect in the vehicle in question as alleged by the complainant. The life of the brake disc or liner solely depends upon the driving habits, speed and road condition on which vehicle is being used. Such minor items which were subjected to normal wear and tear were not covered under the warranty policy of the manufacturer company. The complainant was charged for consumable items . The complainant had been using the vehicle extensively and its normal wear and tear was faster than any other vehicle normally used for personal purpose. The minor defects reported in the engine were rectified and the amount charged at the initial stage was refunded vide cheque dated 10.8.99 for Rs.10544/-. It was pleaded that as there was no manufacturing defect in the vehicle, so OP company was not liable to replace the vehicle or refund its price. A prayer was made for dismissal of the complaint. 6. The District Consumer Forum after going through the evidence and hearing the counsel for parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order, opposite parties- Manufacturer as well as dealer of the vehicle in question had filed their separate appeals before the Punjab State Consumer Commission which have been transferred to this Commission under directions of Hon’ble National Commission. 7. We have heard learned counsel for the parties and gone through the file carefully. It has been submitted on behalf of both OPs that the vehicle in question was used for commercial purpose and as such due to extensive use its normal wear and tear was faster than any other vehicle normally used. The complainant faced problem first time in the engine on 22.3.99 after eight months of purchasing the vehicle and the defects reported by the complainant were rectified by replacing the defective/damaged parts and a sum of Rs.10544/- was also refunded which was initially charged from the complainant for replacement of certain parts including labour charges. It was further argued that there was no manufacturing defect and complainant did not lead any expert evidence on this aspect. The complaint had been filed only on the mere apprehension that the engine may stop working and nowhere it had been proved that the engine had actually stopped working and vehicle was standstill. However, learned counsel for complainant tried his level best to repel these points of arguments. 8. We have given our thoughtful consideration to the entire matter and find that the learned District Forum while placing reliance upon the affidavit of Devinder Singh Mechanic, Somy Engineering Works, Sangrur ordered replacement of the engine of the vehicle in question. Except the said affidavit of the mechanic, there is no other evidence to prove that the jeep in question was suffering from any manufacturing defect. A perusal of the affidavit of Devinder Singh shows that he only mentioned therein that he had physically checked and inspected the Jeep in question on 1.2.99 while replacing the head gasket and found that its engine was defective which could not be repaired and defects of the vehicle could not be removed as these were due to manufacturing defect. The said mechanic without pointing out any particular defects termed the engine defective having manufacturing defects. On the basis of sole affidavit of mechanic it is not proved beyond any doubt that the vehicle was suffering from any manufacturing defect. Thus, the reasons recorded by the District Forum for its findings on manufacturing defects in the vehicle do not appear to be grounded on due appreciation of facts aided by impartial logic. Consequently, we do not find it a fit case for allowing replacement of the vehicle with a new one. 9. It is not out of place to mention here that the complainant had to take the Jeep to the workshop of dealer for rectification of the defects occurred in it. The Jeep is in possession of the complainant since 24.7.1998 and after 12 years of its use it may not be in good working condition now. So in these circumstances, this Commission tried to amicably settle the dispute and the matter was placed before the Lok Adalat where OPs had agreed to pay Rs.10,000/- to the complainant but complainant insisted on replacement of the engine. In the totality of facts and circumstances of the case, we are of the considered opinion that a lumpsum compensation of Rs.20,000/- would meet the ends of justice. Hence, we order accordingly. 10. In the result, the impugned order dated 15.4.2002 passed by the learned District Forum for replacement of vehicle is set aside and both appeals are partly accepted with the direction that out of the total compensation of Rs.20,000/- awarded to the complainant, Rs.5000/- shall be paid by the dealer M/s P.K.Motors Pvt. Ltd. and remaining Rs.15,000/- shall be paid by the manufacturer Mahindra & Mahindra Limited, within one month from the date of receipt of copy of the order, failing which complainant shall be entitled to interest @ 15% p.a. from the date of this order till actual realization. The parties shall bear their own costs.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | | 
