KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.51/2015

JUDGEMENT DATED: 24.02.2023

(Against the Order in O.P.No.466/2002 of CDRF, Thrissur)

PRESENT:

APPELLANTS:

(by Advs. George Cherian Karippaparambil & S. Reghukumar)

Vs.

RESPONDENT:

(by Advs. Kulathoor Rahul L.R. & Vellarada R. Rethin)

JUDGEMENT

SRI. RANJIT R.: MEMBER

          Opposite parties have filed this appeal against an order dated 19.07.2014 in O.P.No.466/2002 of the Consumer Disputes Redressal Forum, Thrissur (in short the District Forum).  The District Forum by its order directed the opposite parties 2 and 3 to pay the complainant an amount of Rs.71,777/(Rupees Seventy One Thousand Seven Hundred and Seventy Seven) the costs of the vehicle with interest @12% per annum from the date of complaint till realisation.  The 1^st opposite party was directed to pay Rs.5,000/-(Rupees Five Thousand) as compensation for the deficiency in service committed by them.  The order has to be complied with within a month from the date of receipt of the order.  If the order is not complied with within the stipulated period all respondents are liable to pay an amount of Rs.10,000/- as additional compensation.

          2.       The short facts of the complaint are that the complainant had purchased a Bajaj 4 stroke Autorikshaw for an amount of Rs.71,777/(Rupees Seventy One Thousand Seven Hundred and Seventy Seven).  Within a week of purchase of the vehicle starting trouble started.  Even though the 1^st opposite party has rectified the problem the same complaint arose several times.  Later the vehicle became totally immobile.  The vehicle has inherent manufacturing defects and hence filed the complaint praying for refund of the cost of the vehicle along with the compensation and costs.

          3.       Opposite parties 1 and 2 filed joint version stating that the vehicle supplied to the complainant had no defects.  The warranty given for the vehicle was only for 5,500kms but when the Autorikshaw was brought to the workshop of the 1^st opposite party it had run more than 65,000kms.  Therefore the opposite parties prayed for the dismissal of the complaint. 

          4.       3^rd opposite party was subsequently impleaded and they have filed version contending that the warranty given to the Autorikshaw was 120 days or 55,000kms whichever occurs early.  The allegations of manufacturing defects were denied by the 3^rd opposite party and hence prayed for the dismissal of the complaint.

          5.       Evidence consists of the oral testimony of the complainant as PW1 and his document marked as Exhibit P1.  Opposite parties did not adduce any evidence.

          6.       The District Forum on the basis of the evidence let in by the parties and perusing the orders of the similar complaints found that the Autorikshaw of the complainant was having manufacturing defect and hence opposite parties 2 and 3 as manufacturers were held liable to replace the vehicle or to pay the cost.  Further the District Forum also found that the 1^st opposite party had committed unfair trade practice and deficiency in service in not properly curing the defects.  The District Forum on the basis of this finding passed the impugned order under challenge.

          7.       Heard.  The parties are referred to according to their status in the complaint. 

          8.       The learned counsel for the opposite parties contended that there are no defects in the vehicle supplied to the complainant.  The District Forum has wrongly accepted the version of the complainant without any evidence as to the defect in the Autorikshaw.  When the allegations of defects are denied by the opposite party it was mandatory for the complainant to comply with Section 13(1)(c) of the Consumer Portection Act, 1986.  In this case the opposite parties had denied the allegations of defects in the vehicle.  Here the complainant had not taken any steps to ascertain the defects of the vehicle, as per Section 13(1)(c) of the Consumer Protection Act.  The District Forum has mainly relied on the orders of the similar complaints to hold that the vehicle of the complainant was also having manufacturing defect.  This is not only a prejudiced order but also against the evidence on record.  The order of the District Forum therefore requires to be set aside.

          9.       We have heard the learned counsel for the appellant at length and also perused the records and considered the contentions taken by the complainant in the complaint.

          10.     The specific contention of the complainant is that from the first week of purchase of the Autorikshaw itself, it showed mechanical defects and even after several repairs done by the opposite party, the defects were not rectified.  Thereafter the vehicle became totally immobile.  Hence his contention is that the vehicle is having inherent manufacturing defect.  To prove the same the complainant was examined as PW1 and he has sworn and deposed that the vehicle developed problems within a week from the date of purchase and it was cured by the 1^st opposite party.  Thereafter the vehicle developed many other defects also.  Even though it was cured several times the defects persisted and later it became defunct and now it is lying at the service centre.  The defects noted are that there is emission of huge quantity of black smoke, low mileage, poor pick-up, abnormal noise from the engine, over heating of the engine, frequent change of oil etc.  This happened within a week of the purchase of the vehicle.  The vehicle is in the workshop of the 1^st opposite party and they are not taking any steps to repair the vehicle.  It is true that the complainant could not produce any documents to prove his case.  Therefore, he has filed a petition calling upon the opposite party to produce the job cards.  The opposite party wilfully did not produce the job card, nor had they filed any affidavit stating the reason for not producing the job card.  The job card is in the possession of the opposite party.  It is the only document to prove the works carried out by them.  This vital document is not produced by the opposite party though the District Commission had directed them to produce.  Hence adverse inference is to be taken and to presume that all the statements made by the complainant about the defects are true and correct. 

          11.     As against this, the opposite party has denied that the vehicle is having manufacturing defect.  It is contended that when the vehicle was brought to the workshop of the 1^st opposite party, it had run more than 65,000kms and that would exceed warranty of 55,000kms.  However, they did not adduce any evidence to substantiate their statement.  Nothing has been brought out by them to prove that the vehicle had run more than 65,000kms.  Opposite parties did not adduce any oral or documentary evidence in support of their case.  Whereas the complainant has deposed and stated that the statements made in the complaint are correct.  He has taken all steps to prove that the vehicle was having defects which could not be rectified.  Moreover, since the vehicle is in the possession of the 1^st opposite party service centre, the complainant cannot prove his case by taking out an expert commission.   The burden of proof shifts with the opposite party to show that there is no manufacturing defect as stated by them. The opposite parties should have taken out an expert commission to substantiate their case.  They have not done so.  Further,  2^nd and 3^rd opposite parties, manufacturers also did not take any steps to prove their case.  Thus the opposite parties have failed to prove their allegation that the vehicle was not having any manufacturing defect.

          12.     In the above given circumstances we are of the opinion that an expert evidence was not necessary for the complainant to prove his case, as urged by the opposite parties.  It is the definite case of the complainant that the vehicle had many defects and it had to be taken to the workshop five to six times, within a short span of time from the date of purchase i.e. within the warranty period.  After paying huge amount the consumer would not be satisfied with the vehicle if it gives constant trouble, that too within a short span of time.   The District Commission has also noted that several cases of similar nature were filed against the very same opposite party before the District Commission all of which were decided against the opposite party.  The opposite parties did not challenge the order in those cases and they have complied with the order in those cases.  These facts goes to show that the vehicle has inherent manufacturing defects.  It is also noted that the production of this model vehicle has been discontinued.  Since the production of this vehicle has been stopped, the only remedy is to refund the price of the vehicle to the complainant.  It was in this circumstances the District Commission has correctly passed the order directing the respondents 2 and 3 to refund the amount of Rs.71,777/-(Rupees Seventy One Thousand Seven Hundred and Seventy Seven), the cost of the vehicle with interest @12% from the date of the complaint and directed them to pay a compensation of Rs.5,000/-(Rupees Five Thousand).

          13.     We find no reason to interfere with this order.  The order of the District Commission is therefore upheld.

          In the result, the appeal is dismissed.  No costs.

SL