(Passed on 14.10.2015)

Per Mr B A Shaikh, Hon’ble Presiding Member

1. This common appeal is preferred by the original opposite party (for short O.P.) No.1 against the common order passed by the District Consumer Forum, Bhandara in five consumer complaints bearing CC Nos.24/98, 26/98, 27/98, 28/98 & 29/98 on 12.05.1999, by which all those five complaints have been partly allowed.

2. The common case of all the complainants in the said five complaints in brief is that the five auto rickshaws manufactured by O.P.No.1 were purchased by them from its dealer O.P.No.2 by paying the full price of the same. However, they found that due to manufacturing defects in the said vehicles, they were not running properly and stopping on the way from time to time. Therefore, they had made complaint to O.P.No.2 and they had taken those vehicles to O.P.No.2 for repairing, which could not remove the manufacturing defects.  Therefore, they were also required to take those vehicles to local private mechanics to carry out the defects, who also could not remove the defects. Therefore, they lastly filed aforesaid five consumer complaints against O.P.Nos.1 & 2 praying that they be directed to replace the defective vehicles by new model vehicle and to pay each of them compensation for loss sustained by them and for mental harassment.

3. The O.P.No.1 was served with notice of those complaints. It sought translated copies of those complaints from the Forum, which were forwarded to O.P.No.1 by the Forum. However, thereafter, the O.P.No.1 neither filed written version / reply before the Forum nor appeared to oppose the said complaints. Therefore, the Forum proceeded without its written version / reply.

4. The O.P.No.2 dealer appeared before the Forum and filed written version / reply and submitted in brief that the Forum has no jurisdiction to decide the complaint and that the vehicles were never brought for repairing to it and that they were taken for repairing to private mechanic and thereby complainants committed breach of condition. It also submitted that it is simply a dealer and it is not responsible for replacement of vehicles by new one. It therefore requested that all the complaints as against it may be dismissed.

5. Thereafter, the Forum below upon consideration of aforesaid submissions and documents and affidavits filed before it, passed the common impugned order in all the five complaints on 12.05.1999 and thereby partly allowed the same. The Forum below concluded in that order that the complaints are filed within limitation, that it has got jurisdiction to decide all the complaints, the complainants are the consumers and that it is proved by the complainants form the documents and the affidavits that there is manufacturing defects in all the vehicles and that the O.P. No.2 has not proved its defence. Therefore, the Forum directed by that common order that O.P.No.1 manufacturer shall replace all the said five vehicles by new vehicles to the complainants and to pay each of them compensation towards the repairing expenses incurred by the complainants and also towards physical & mental harassment, amounting to Rs.5,000/-.  The Forum also directed the O.P.No.1 to comply that order within a period of 45 days from the date of that order and in case of default the aforesaid amount will carry interest @ 18% p.a.

6. Feeling aggrieved by that order, the O.P.No.1 has preferred this appeal and therefore, it is being referred as appellant hereinafter and the original complainants are hereinafter referred to as the respondent Nos. 1 to 5. The respondent No.5 died and his LRs are brought on record as respondent Nos. 5-A to 5-C. The original O.P.No.2 is referred to as respondent No.6 in this appeal.

7. Today we have heard Advocate Mr S B Solat appearing for appellant and respondent No.3 Abdul Shabir Shaikh in person.  We have also perused the copies of the original complaints and warranty card, which are filed by the appellant alongwith the appeal memo.  We have also perused the copy of the common impugned order filed by the appellant.

8. The learned advocate of the  appellant submitted that the complainants have not adduced any evidence to prove manufacturing defect in the vehicles. Secondly vehicles were purchased at Nagpur and they were registered with RTO of Gondia and therefore District Consumer Forum, Bhandara has no jurisdiction to decide the complaints. Thirdly all the vehicles were purchased for commercial purpose being taxi. Fourthly, the Forum did not consider the documents produced on record properly and that the vehicles got repaired from private mechanic without approaching the dealer and manufacturer. Lastly there is no evidence to show that the vehicles purchased by the complainants / respondents Nos. 1 to 5 were manufactured by O.P.No.1 / appellant and there is no evidence about purchasing of the vehicles manufactured by the appellant. Therefore, he argued that as the Forum has not considered these material aspects, it resulted into miscarriage of justice and hence he requested that the impugned order may be set aside.

9. The respondent No.3 in person, supported the impugned common order and submitted that all the vehicles were purchased by the complainants by taking loan from the respective financer of the Bhandara District and the loan amount was paid to the dealer of the vehicles from Bhandara District only and that all vehicles were registered at RTO of Bhandara and therefore, the Forum below has got jurisdiction to decide the complaints.  He also submitted that all the vehicles of same model were having manufacturing defects and those defects could not be removed as stated in the complaints and therefore, he requested that the appeal may be dismissed.

10. It is seen that this common appeal preferred against the common order passed in aforesaid five complaints is not maintainable in law. Separate five appeals ought to have been filed against orders passed in five complaints. However, as the appeal is of the year 1999 and as we are now in the year 2015, we found it not just and proper to direct the appellant to file five separate appeals.  It is seen that initially this common appeal was filed  before State Commission, Mumbai and then it came to be transferred to this Circuit Bench, Nagpur for disposal according to law. Thus, there is lapse of almost 15 years from filing of the appeal.  Under these circumstances we are inclined to decide the appeal on merits also.

11. It is also pertinent to note that the appellant was though served with the notice of the complaints as issued by the Forum and thought the appellant was furnished the translated copies of complaints by the Forum, the written version / reply was not filed by the appellant before the Forum to resist all the complaints. No explanation is given by the appellant in appeal memo for not filing written version before the Forum. Therefore, the aforesaid defence raised by Mr S B Solat, advocate appearing for the appellant for first time in this appeal, cannot be considered and accepted.

12. It is also pertinent to note that all the complaints were opposed only by O.P.No.2 / respondent No.6 – dealer by filing written version. The complaints have been dismissed against the said dealer. The complainants have not preferred any appeal against the dismissal of the complaint against the dealer.

13. It is proved by the complainants from the documents filed on record and the affidavits that there are manufacturing defects in all these vehicles.  The said documents and affidavits filed by the complainants went unchallenged as the appellant did not appear before the Forum in all the complaints. It is clear from the submission made by the complainants in complaints and the documents & affidavits filed by them that all those vehicles were purchased by them from the authorised dealer of the appellant and that all those vehicles were manufactured by the appellants and they were having manufacturing defects.  Those vehicles used to stop running and the complainants were required to carry out the repairing from time to time and despite of making efforts by the complainants, the manufacturing defects in those vehicles could not be removed.

14. We also hold that the Forum below has the jurisdiction since the loan amount was obtained by the complainants from Bhandara District and paid from Bhandara District to the dealer and the vehicles were also registered at RTO of Bhandra only with the knowledge of the dealer. Moreover, the complainants are the consumers of the appellant and the dealer.

15. Thus, we find that the Forum has properly exercised its jurisdiction and properly considered the evidence brought on record.  We find no merit in this appeal and it deserves to be dismissed.

ORDER

1. The appeal is dismissed
2. No order as to costs in appeal.
3. Copy of the order be furnished to both parties free of cost.