JUSTICE AJIT  BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Commission Punjab dismissing the appeal preferred by the petitioner against the order of the concerned District Forum in limine.

2.         Briefly stated, the facts relevant for disposal for the disposal of the revision petition are that the petitioner ( earlier M/s Bajaj Tempo Ltd.) is the manufacturer of the subject vehicle Cruiser Euro II. 

3.         It is the case of the complainant that on 16.03.2007, he purchased the subject vehicle from M/s Raj Motors, Rajpur Road, Patiala ( OP No.1), the then authorized dealer of the petitioner against a bill in which the year of manufacture of the subject vehicle was mentioned as 2007. 

4.         That  at the time of first service of the vehicle, the complainant was shocked to know that the subject vehicle was 2006 model. The complainant, thus, approached OP no.1 with a request seeking replacement of the vehicle or refund of the consideration amount Rs.5,36,000/-.  OP No.1 assured the complainant that he would talk to manufacturer but the grievance of the complainant was not redressed.  In October 2007, the complainant again approached OP No.1 who told that he was no more the dealer of the petitioner company and asked the complainant to contact Sh. Harish Gupta, Sales Officer of the petitioner company.  On being contacted Sh. Harish Gupta assured the complainant that his vehicle would be replaced but nothing was done.

5.         It is also the case of the complainant that in February 2008, the paint of the vehicle started fading and its body started to rust.  The complainant, therefore, approached the Sales Officer who told the complainant to get his vehicle repaired from M/s Gurvir Motors, Ludhiana.  The complainant took the subject vehicle to Gurvir  Motors, Ludhiana where, on checking, it was found that fading of paint and rusting of body was due to poor workmanship and defective material used for building the body.  The officials of M/s Gurvir Motors told the complainant to approach the dealer from whom the vehicle was purchased.  The complainant again contacted the petitioner opposite party no.3 on telephone and he was assured that his grievance would be addressed but nothing was done.  Thereafter, the complainant got his vehicle checked by one Rajesh Aggarwal, Surveyor and Loss Assessor, who after inspection found that the damage to the vehicle was caused because of inferior quality material and poor workmanship on the part of the manufacturer.  The complainant then approached opposite parties for redressal of his grievance but in vain.  Being aggrieved, the complainant raised the consumer dispute by filing consumer complaint in the District Forum Patiala ( Punjab).

6.         Opposite Party No.1 in the written statement admitted the sale of subject vehicle to the complainant for Rs.5,36,000/- against bill no. 946 dated 16.03.2007.  It was pleaded by OP No.1 that the complainant knowingly purchased 2006 model and he is trying to take advantage of typographical mistake in the bill wherein the year of manufacture is wrongly mentioned as 2007. OP No1 also denied that the complainant ever approached him with any complaint about defect in the subject vehicle or he advised the complainant to contact Sh. Harish Gupta, Sales Officer of the manufacturer.

7.         The petitioner OP no.3 also resisted the complaint by filing written statement denying the allegations made in the complaint.

8.         The District Forum Patiala on consideration of pleadings and evidence rejected the plea of the respondent complainant that he was sold 2006 model vehicle representing the same to be 2007 model.  The District Forum, however, accepted the plea of the complainant regarding the poor quality of iron sheet used for manufacturing the body shell of the vehicle as also that of paint. The complaint, therefore, was partly allowed with following directions:

“We are of the considered view that body shell of the vehicle having been manufactured with a poor quality of the iron sheet and the workmanship in finishing the same also not being of upto the mark, the body shell has got to be replaced.  We accordingly, accept the complaint and give a direction to OP No.3 to get the body shell of the vehicle replaced within a period of two months from the date of receipt of certified copy of the order.  Since the complainant had not made a written request for the replacement of the body shell to Op no.3 nor  had he served the OP with a legal notice, no order as to costs.”

9.         Not being satisfied with the relief granted by the District Forum, complainant filed appeal no. 1700 of 2011 in the State Commission.  The said appeal, however, was dismissed vide order of the State Commission dated 20.07.2015.  The complainant has not challenged the aforesaid order.

10.       The opposite party also being aggrieved of the order of the District forum approached the State Commission Punjab in appeal No. 1569 of 2011.  The State Commission on re-appreciation of evidence did not find fault with the order of the District Forum.  The State Commission accordingly dismissed the appeal.  This has led to the filing of the revision petition.

11.       Learned counsel for petitioner OP No.3 has drawn our attention to the terms and conditions of the warranty of the subject vehicle particularly clause 9 and submitted that as per the terms and conditions, the warranty period for body fitment components of the subject vehicle including the body panels, doors, bonet, roof and other sheet material components covered for complaints like cracks and corrosion was 12 months from the date of sale of the vehicle or 1,00,000 kilometers run of the vehicle.  It is contended that after the purchase of the subject vehicle, the complainant got the vehicle serviced on 10 occasions during the period w.e.f. 16.04.2007 till 03.02.2009 but he never reported any complaint regarding the body shell of the subject vehicle. This fact has been totally ignored by the Fora below,  therefore, the impugned orders cannot be sustained.  It is submitted that Fora below have passed the order on the report of one surveyor Rajesh Aggarwal ignoring the fact that report is one sided and is prepared on the basis of inspection conducted at the back of the petitioner opposite party or the dealer through which the vehicle was sold.  Thus, it is contended that impugned orders suffer from material defect and is liable to set aside.

12.       Learned counsel for the complainant on the contrary has contended that Fora below have rightly relied upon the report of surveyor as also the photographic evidence of the subject vehicle produced by the complainant.

13.       We have considered the rival contentions.  On perusal of record, it is noticed that impugned order has been passed in utter disregard of the warranty given by the petitioner ( manufacturer).  It is not in dispute that subject vehicle was purchased by the complainant on 16.03.2007.  The opposite party has placed on record copy of the terms and conditions of the warranty.  Clause 9 of the terms of the warranty conditions deals with warranty period of body of subject vehicle and is reproduced as under:

“9.        Subject to the Terms and Conditions detailed herein, warranty is offered on the items mentioned in Schedule III below only for 12 (Twelve) months from the date of sale of vehicle or 1,00,000 ( one lakh) kilometres run of the vehicle, whichever occurs earlier.

SCHEDULE III:

ENGINE COMPONENTS

1. Fuel Flexible Hoses(b)Water Pump Assembly

(c ) Radiator Complete                    (d)       Radiator Fan

( e) Timing Chain                             (f)         High Pressure Pipes

(g)  Flywheel Ring Gear

CLUTCH COMPONENTS

1. Slave Cylinder Assembly

2. Clutch Master Cylinder

TRANSMISSION COMPONENT :  Propeller shaft Assembly

BRAKES COMPONENTS :

1. Brake master Cylinder Assembly

2. Wheel Cylinder Assembly

GEAR BOX COMPONENTS

1. Synchroniser Rings and Body

2. Synchroniser Sleeves

3. Shifting Fork/Block/detent

REAR AXLE and DIFFERENTIAL COMPONENTS

            Oil Seals and Bearings

FRONT SUSPENSION COMPONENT :Torsion Bar

REAR SUSPENSION COMPONENT:

            Leaf Spring upper, Middle and Lower

STEERING COMPONENTS : Guide Bolt/bearing Bolt.

BODY FITMENTS COMPONENTS:

1. Striker Plate Assembly

2. Inside Lock Assembly

3. Fuel Tank Lock Assembly

4. Body Panels, Doors, Bonnet, Roof and other sheet metal

   Components covered like cracks and corrosion.”

14.       On bare reading of the above, it is clear that manufacturer opposite party had given one year warranty for any defect in the body of subject car.  The complaint admittedly has been filed after the expiry of warranty period.  It is pertinent to note that as per the allegations in the complaint, the complainant noticed fading of the paint and rusting of body of the vehicle in February 2008.  Ex. C-18 & C-19 are the invoices pertaining to job work done during service of the subject vehicle by M/s Gurvir Motors Pvt. Ltd.  These two invoices are dated 12.01.2008 and 29.02.2008.  In neither of these invoices, there is any mention of fading of paint or rusting of the body of the subject vehicle.  The complainant has not examined any mechanic or official of M/s Gurvir Motors to show that at the time of aforesaid two services, the complainant pointed out rusting of the body of the vehicle or fading of the paint or any such defect was noticed.  From this it is evident that complainant has failed to prove his allegation regarding defect in quality of the material used in the body of the subject vehicle or its paint.

15.       The judgments of the Fora below are based on the inspection reports submitted by Rajesh Aggarwal, Surveyor and Loss Assessor.   First report of the Surveyor is dated 20.01.2009. Relevant portion of the report is reproduced as under:

“It is certified that I have inspected the vehicle no.PB-13R-4852 at Sangrur on 13.1.2009 and the following specifications of the vehicle observed :-

Regd. No.                  PB-13R-4852

Chasis No.                T57046802L-06

Engine No.                D270146-06

Speedometer Reading  94069

Observations :

I have observed the above vehicle minutely.  The rusting/material cracking has been observed at different places.

“In my opinion, it seems to be the material defect or poor workmanship from manufacturer side.”

Report is issued “Without Prejudice.”

16.       Second report of the surveyor Rajesh Aggarwal is dated 15.10.2010.  The relevant portion of  the report is reproduced as under:

“It is certified that I have again inspected the vehicle No.PB-13R-4852 bearing chasis No.T57046802L-06, engine No. D270146-06 of regd. Owner Balbir Singh s/o Inder Singh R/o  Lehragaga at Sangrur on 13.10.2010 and also took the photographs of the vehicle from different angles. The speedometer reading of the vehicle at the time of inspection was 000045 kms.

Observations :

I have observed the above vehicle minutely again. The rusting/material cracking has been observed at different places on the body shell and its body parts.  The rusting/cracking has been observed near windshield glass frame (body shell) on rh mudguard (body part) on rh rear door (body part) & right rear qtr. Panel (body shell), on rh pillar (body shell), back side portion near dicky on both sides LH/RH (body shell) dicky panel (body part) on lh doors (body part), near door & pillar (Body shell) on lh side and on floor panel.

Conclusion :

I have observed that the body shell & its parts have developed cracks due to rust as shown in the photos & due to that the paint has also come out from the body shall and its parts. After inspecting the said vehicle & as per my experience in motor & engineering, I am of the opinion that the said cracks/rust occurred due to the material defect or poor workmanship from the manufacturing side.

Report is issued “Without Prejudice.”

17.       On reading of the said two reports, we find no mention of any notice having been served on the petitioner or the authorized dealer ( OP No.1).  There is no mention of presence of their representative at the time of inspection. Thus, it is clear that inspection reports have been prepared ex parte at the back of the petitioner.  Therefore, in our considered view, the Fora below have erred in relying upon said two reports. Otherwise also, as per clause 9 of the warranty condition, warranty for the paint and body shell was for one year from the date of sale.  This means that warranty so far as body shell and paint job is concerned expired on 16.03.2008. Admittedly, the surveyor has conducted inspections after the expiry of warranty.  Therefore, also, reports are not much relevant.  `

18.       So far as fading of the paint and rusting of the body is concerned, it has direct co-relationship with the upkeep and maintenance of the vehicle.  If a vehicle is not properly maintained or has met with an accident, there is every possibility of corrosion of paint which paves way for rusting of exposed portion of iron sheet.  Similarly, if the vehicle is parked in open and exposed to sunlight, the colour of the paint is bound to fade.  The Fora below have failed to appreciate the aforesaid aspects of the case and have blindly relied upon the report of the surveyor based upon the inspection conducted after the expiry of warranty. Thus, in our view, the impugned orders suffer from material defect, therefore, cannot be sustained.

19.       In view of the discussion above, we allow the revision petition, set aside the impugned order and dismiss the complaint.