PER MR SUBHASH CHANDRA

1.     This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails order dated 22.03.2018 of the State Consumer Dispute Redressal Commission, Rajasthan, Jaipur (in short, ‘State Commission’) against the order in First Appeal No. 896 of 2013 filed against order of the District Consumer Disputes Redressal Forum, Jaipur (in short, ‘District Forum’) dated 26.07.2013 in complaint no. 1116 of 2012. 

2.     In brief, the facts of the case are that the revisionist-complainant had purchased an Alto car on 24.06.2009 from respondent no. 3 who is a dealer in cars manufactured by respondents 1 and 3. While the car was in the period of warranty, it developed the problem of getting over heated. As his complaints to the respondents were not addressed, the revision petitioner filed a complaint before the District Forum on 09.12.2010 alleging manufacturing defect and praying for the car to be replaced. The District Forum ordered that:

… the  complaint is partly allowed and it is ordered that the defendants, being jointly and severally responsible, after repairing the vehicle in question and making it completely fit and to move on the road and after getting it tested from the complainant, shall hand it over to the complainant within the period of one month from today and if the vehicle is not repaired completely, they shall pay the cost of the vehicle Rs 2,66,051/- (Rupees two lakhs sixty six thousand fifty one only) with interest at the rate of 12 percent per annum from 24.06.2009 to the complainant. Other reliefs sought by the complainant are dismissed.

3.      On 02.09.2014, while the vehicle was in the custody of respondent nos.3 and 4, the car was burnt in an accidental fire and completely destroyed. Insurance of Rs.1,50,000/- for the same was claimed by the respondent nos. 3 & 4. It is claimed by the respondents 3 and 4 that the vehicle had been repaired in compliance with the order of the District Forum prior to the fire and a notice dated 30.07.2014 was issued to the revision petitioner to collect the vehicle. It is contended by the revision petitioner that no intimation of the fire incident and destruction of the car was given to him.

4.      In appeal dated 02.09.2013 filed by respondent nos. 3 and 4 against the order of the District Forum, the State Commission has held that:

 I am of the opinion that when this car  got destroyed due to fire, information in this regard should have been given to the complainant, this has not been brought on record that what amount, the defendant nos. 3 and 4 received from the insurance company. This opportunity should have also been given to the complainant that he had presented valuation in connection with the loss of his car through the defendant nos. 3 and 4 to the insurance company and whatever amount, the defendant nos. 3 and 4 had received as compensation (loss) of this car from the insurance company, should have been returned to the complainant by them or that amount should have been got deposited under Notice before the Commission.

In all these circumstances, it shall be pertinent to give this order that the defendant nos.3 and 4 may pay the amount of loss of the car received from the insurance company rupees one and a half lak to the complainant and also pay interest at the rate of ten percent from 01.01.2015 on this amount and also pay compensation of Rs.50,000/- on account of mental agony and other troubles suffered by the complainant. If the defendant nos.3 and 4 had got deposited any amount before the learned District Forum, that amount be adjusted.

The defendant nos.1 and 2 (manufacturer) has not responsibility in these circumstances, if they have got deposited any amount before the learned District Forum, that amount be returned.”

5.     The petitioner is before us with the prayer to set aside the order dated 22.03.2018 of the State Commission and uphold the order of the District Forum.

6.     We have heard the submissions of the petitioner who appeared in person as well as the learned counsels for respondent nos. 1 to 4 and have perused the records carefully.

7.     The respondents had argued before the lower fora that the revision petitioner had installed an unauthorized gas kit in the vehicle on account of which the warranty terms had become inapplicable. However, the State Commission had, on the basis of the Job Card at the workshop, concluded that there was no mention of the gas kit in the car. Before the District Forum the revision petitioner had averred that the issue of the vehicle getting over heated had manifested within a few days of the purchase itself and the vehicle had run only 180 kms on the first occasion when it was sent for repair. The petitioner was charged Rs.624/- for repairs as it did not fall under warranty. Thereafter, on 19.03.2010, 22.06.2010, 27.10.2010 and 21.12.2010 the vehicle was also repaired for damage to the clutch plate. However, it was not collected by the petitioner after the last occasion on 21.12.2010. It is admitted by the petitioner that a gas kit had been installed by a person authorized by the State Government to do so. The District Forum, with the consent of both parties, had the vehicle inspected by M/s Akshay Motors who reported that the clutch plate had a defect which caused the overheating. This finding is supported by the affidavit of the mechanic, Kailash Chand Saini. The District Forum has therefore concluded that there was deficiency in service and awarded the cost of the vehicle with damages to the petitioner.

8.      The State Commission’s order, on the contrary, notes that the vehicle had been repaired by the respondents and an intimation was sent to the petitioner who failed to collect the vehicle. The fire incident subsequently destroyed the vehicle. Hence it has ordered that the amount received by the respondents from the insurance company be handed over to the petitioner with interest at the rate of 10% from 01.01.2015 along with compensation of Rs.50,000/- for mental agony.

9.      The case of the complainant is that his vehicle was not satisfactorily repaired by the respondents and that there was a manufacturing defect. The District Forum has considered the issue of the frequent repairs required by the vehicle and had also appointed an expert with the consent of both parties to examine the vehicle. The report of this expert was that the problem lay in the clutch plate. Therefore, the issue concerning the gas kit as the likely cause of overheating was resolved and accordingly the cost of the vehicle was ordered to be refunded with interest. The order of the State Commission does not contain any specific finding on the cause of the overheating; instead, it relies upon the contention of the respondents that the vehicle had been repaired by them and it unfortunately got destroyed in the fire incident, for which compensation was obtained by the respondents from the insurance company.   

10.   In the light of the foregoing, we are inclined to consider the order of the District Forum to be based on a more valid basis. The order considers the issues of the mechanical nature that necessitated the vehicle to be brought repeatedly to the workshop of the respondents 3 and 4 and the report of an expert who assessed whether the likely cause of defect was a mechanical malfunction or the installation of a gas kit. Its findings are therefore based on the basis of reports and documents such as the Job Card of the respondents’ workshop. On the other hand, the order of the State Commission, which is more tilted in ensuring payment of the insurance amount to the petitioner, is liable to be set aside.

11.    For the foregoing reasons, I find merit in the revision petition. The revision petition is accordingly allowed. The impugned order of the State Commission in First Appeal No. 896 of 2013 is set aside and the order of the District Forum is affirmed.