F.A. No. 71 of 2009

F.A. No. 399 of 2009

                                                                                                                                                                                                                                      Mr M.Sahoo, learned counsel files Vakalatnama on behalf of respondent No.1 which is accepted and kept on record.

2.      Heard learned counsel for parties.

3.      Since both the appeals arise out of one impugned order, both the appeals are heard analogously. This common order shall govern the result of both the appeals.

4.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

5.      The case of the complainant in nutshell is that the complainant purchased a Tata Truck from OP No.1 on 26.5.2005. After building body and obtaining necessary certificate the vehicle started playing on the road. It is alleged inter alia that the vehicle was emitting heavy smoke, poor mileage and low pick up.  The vehicle was placed at Niranjanlal Automobiles, Jagatpurfo repair. But the trouble arose due to defect in the fuel injunction system of the vehicle. Pump became defective  and defect could not be removed.  So the vehicle was taken to OP No.1 on 26.9.2005 and after repair also the vehicle could not give good result. So complainant requested OP No.1 to change the fuel injunction system but OP refused to do so. So the complaint was filed  by the complaint.

6.      OP No.1 filed written version stating that the Consumer Forum has no jurisdiction to entertain the complaint and the vehicle was purchased for commercial purpose. It is further averred that the vehicle has come to their workshop with problem in injunction pump but some parts were replaced but vehicle was referred to OP No.2. After repairing the vehicle was left with the complainant with full satisfaction. On 22.9.2005 again complainant brought the vehicle and by that time the relevant kms have already been covered. It was repaired and delivered to the complainant. Since the fuel injunction pump sullied was not covered up warranty, such replacement was not possible. Thus, there was no deficiency in service on their part.

7.      OP No.2 who is authorized service centre also checked up the fuel injunction pump on 18.7.2005 and found that all those parts were in normal condition and a few adjustments were made. Again on 23.9.2005, the vehicle was sent to Niranjanlal Automobiles for repair of fuel injunction pump. The piston was replaced and the work was done to the satisfaction of complainant. Therefore, there was no deficiency in service on their part.

8.      After hearing the learned counsel for both the parties,  the learned District Forum passed the following order:-

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That the complaint petition is allowed on contest against the OPs without cost. Both the OPs are liable for their deficiency of service and they are to pay compensation of Rs.50,000/- (Rupees fifty thousand) jointly and severally to the complainant. The defective fuel injunction pump attached to the vehicle is to be replaced by a new one. This replacement and payment of compensation are to be made within 3 months from the date of this order. Parties are to bear their own cost throughout.”

9.      Learned counsel for the appellant in FA No. 71 of 2009 submitted that learned District Forum has committed error in law by accusing the OPs although warranty does not cover such fuel injunction system for its replacement. According to him, the learned District Forum also gone through the warranty and then pass the impugned order. He submitted to allow the appeal by setting aside the impugned order.

10.    Learned counsel for respondent No.1 submitted that the defects in the vehicle from time to time give presumption that the vehicle has manufacturing defect. The relevant part was covered under the warranty and as such the impugned order was correct and legal. So, he supports the impugned order.

11.    Considered the submission of learned counsel for the       respective parties and perused the impugned order including the DFR.

12.    It is admitted fact that the complainant has purchased the vehicle from OP No.1 and it is also admitted fact that vehicle has been to the workshop of OP No.1 from time to time but the complaint of the complainant is that OP No.1 refused to replace the damage injunction system.

13.    Learned counsel for the appellant drew our attention to the warranty which is under Annexure -3  produced by the learned counsel for the appellant. We have gone through the same. It appears from clause 3 that the warranty does not cover any parts supplied by other parties to the present OP. It is very clearly mentioned in clause 3 that  tyre, batteries, rubber parts, electrical equipment, measuring instruments, diesel injector pumps and accessories are  supplied by other parties. Since the injunction pump is also not manufactured by the appellant it does not cover under the warranty issued by the OPs. Therefore, the order impugned order passed in this case directing the OPs to remove the parts is not tenable.

14.    In view of aforesaid discussion, we are of the view that the learned District Commission without applying judicial mind passed the impugned order which is liable to be set aside and it is set aside.

          Both the appeals stand allowed. No cost.

          DFR be sent back forthwith.

         Statutory amount deposited be refunded to the appellant with interest accrued thereon if any on proper identification.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.