Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act, 1986 (for short “the Act”), is to the order, dated 02.08.2010, in First Appeal No.955 of 2000 passed by the State Consumer Disputes Redressal Commission, Circuit Bench, Rajasthan (for short “the State Commission”).  By the impugned order, the State commission concurred with the finding of the District Forum with respect to deficiency of service on behalf of the manufacturer and the dealer in not rectifying the defects and returning the vehicle to the Complainants.

2.     The  facts briefly put are that the Complainants had purchased Ashok Leyland Company’s Truck Model “Taurus” vide bill no.F-Bees-308, dated 07.03.1995.  They found certain technical and manufacturing defects in the vehicle which were informed to the dealer several times, but not rectified.  It is pleaded  that  the relevant parts were not available with the dealer; the  clutch plates, springs, suspension system etc. were not in accordance with the original parts and had been forcibly fitted leading to improper functioning of the vehicle.  It is averred that the rear suspension system, rod and lever chassis frame, etc. were defective which had led to frequent break downs and towing of the truck to the workshop.

 3.     On 23.07.1997 and on 01.09.1997, an inspection was carried out by an Engineer appointed by the dealer, M/s Rajesh Motors and an assurance was given on 22.08.1997 that all the defects would be removed and the vehicle would be handed over to the Complainants in a road worthy condition.  The Complainants pleaded that letters were written on 13.08.1997, 22.09.1997, 23.12.1997 and a legal notice was also issued on 12.01.1999 but the vehicle was not returned to the Complainants.  On 17.10.1997, it was agreed by the Opposite Parties that the parts would be replaced free of cost, but they did not adhere to the agreed terms.  They pleaded that the vehicle was with the dealer in a defunct condition on account of which they had suffered loss of monthly income of ₹25,000/- and could not pay the installments on time to the Finance Company, resulting in compounded interest and other expenses.  Hence, they preferred a  Complaint before the District Forum seeking direction to the Opposite Parties to remove the manufacturing defects, pay the monthly loss of ₹25,000/-, the installments with interest, compensation and costs.

4.     The first Opposite Party, i.e. the manufacturer, Ashok Leyland Limited, Chennai did not file their Written Version before the District Forum.

 5.     The second and the third Opposite Parties, i.e., the dealer M/s Rajesh Motors Limited and Ashok Leyland, Jaipur Branch had filed their joint Written Version denying that there was any manufacturing defect in the vehicle and that the parts of every type were available with the dealer and it was only due to over loading of the said vehicle that the parts had become defective.  There was no problem with the suspension of the vehicle and the vehicle had run on the road for almost two years.  The vehicle was purchased in the year 1995 and was used for business purposes till 1997 and it was only when the warranty period had expired that the Complainants approached them to get the truck repaired. All the repairs were conducted and it was only due to non-payment of the bill that the truck was not returned to the Complainants.  All other allegations in the Complaint were denied by the second and the third Opposite Parties in their written version.

6.     The District Forum, based on the evidence filed, allowed the Complaint and observed as follows:

1. “The questioned vehicle which was handed over to respondent no.2 for repairing, may kindly be handed over to complainants by the respondent no.2 within 40 days after received fitness certificate of vehicle from respondent No.1 in working condition as its equivalent to same old age vehicle and duly change its parts according to the consent and written statement of respondents No.2 & 3 and removing it all manufacturing defects.

2. If the respondent No.2 has fails to compliance the above directions within above time period then respondents shall liable to pay amount comes after deduction depreciation accordingly including cost of such vehicle of chasis and the value of body in it upto its age within 30 days from dated 02.10.1997 (which has been stated as repaired by the respondent No.2).  After 30 days of above duration the respondents shall responsible to pay amount with 15% interest P.A.

3. The respondent No.2 shall responsible to pay at the rate of ₹500/- per day as compensation amount from dated 02.10.97 till the compliance of para no.1 & 2 of above order to the complainants in respect of loss created on not returning the vehicle to complainants on time and keeping the same in his workshop without repairing of above vehicle.

4. Complainants are entitled to get ₹1000/- from the Opposite party no.3 and ₹500/- 500/- from the opposite party No.1 & 3 as complaint expenses.

5. Other required relief has made cancel.

6. After in view of the some documents available in this matter and on the basis of entire statement application and Authority Letter dated 17.04.1999 however it is seem as doubtful of repossess the questioned vehicle of complainant by M/s Ashoka Leyland Finance Ltd. But the above finance company has not been included as party in this complaint application, therefore, no any other order has been passed against M/s Ashoka Leyland Finance Ltd.

7.     Aggrieved by the said order, the manufacturer and the dealer preferred Appeal, being FA No. 09555 of 2000, before the State Commission contending that there were no manufacturing defects and that the dealer had conducted the repairs and written several letters to the Complainants to take delivery of the truck.  The State Commission concurred with the finding of the District Forum, holding the manufacturer and the dealer deficient in not effecting the repairs and not returning the vehicle to the Complainants.

8.     Dis-satisfied with this order, the manufacturer has preferred Revision Petition No. 4067 of 2010 and the dealer preferred Revision Petition No. 4455 of 2010 before this Commission.

9.     Learned counsel appearing for the manufacturer submitted that the Fora below failed to consider that the vehicle was financed to a partnership firm for commercial purposes; Section 13(1)( c) of the Consumer Protection Act was not adhered to as the said vehicle was not sent to an appropriate laboratory for testing; no expert evidence was led to establish that the vehicle had any manufacturing defect; the Complainants had parked the vehicle in the Petitioner’s premises and did not collect the vehicle for reasons best known to them; that the Complaint was initiated only after the Finance Company had repossessed the vehicle; that the Fora below had wrongly interpreted the letters dated 28.8.1998 and 17.4.1999; the relief granted is unexecutable as the said vehicle had been re-possessed by the Financer.

10.   Learned counsel representing the dealer added that the truck was put to use by continuous overloading by tampering with the suspension system, causing failure of the clutch plates.  He argued that the vehicle was used for several months and it was only after the warranty period had expired, that the Complainants complained that the truck was having manufacturing defects with respect to clutch plates, cross members, suspension etc.  On 30.8.1997 and 25.9.1997, letters were received from Ashoka Leyland Finance Limited that the Complainants were not regular in paying the installments.  On 4.10.1997, 9.10.1997, 8.1.1998, 12.3.1998, 11.8.1998, 10.12.1998, letters were written to the Complainants to take delivery of the said truck.  On 9.3.1999 and 17.4.1999, again letters were received from the Finance Company seeking surrender of the vehicle and subsequently on 20.4.1999, Ashoka Leyland Finance Limited took possession of the vehicle from the Jaipur Office.

11.   Learned counsel for the Petitioner/Dealer also filed an additional affidavit giving the details of all the job cards wherein it is seen that the vehicle was taken for repairs for the same complaint of clutch plates, clutch spring, brake plates, cross members etc.

 12.   At the outset we address ourselves to the first issue on maintainability of the Complaint.  The Petitioners could not establish their allegation by way of any documentary evidence that the Complainants had owned a fleet of trucks and were conducting business on a large scale. The Complainants have filed this Complaint in their individual capacity and there is a specific pleading in the Complaint that the said truck was used for the purpose of livelihood.  Hence, we are of the view that the Complainants fall within the ambit of Section 2(1)(b) of the Consumer Protection Act, 1986.  It is an admitted fact that the truck was handed over to the Petitioner/Dealer on 22.8.1997 for affecting repairs to clutch plates, cross-members, suspension system, balance rod, including road carrier etc.   It is the Complainants’ case that on 23.8.1997, they had written a letter to the Dealer that the vehicle had several manufacturing defects which needed to be rectified and they were given complete assurance that the vehicle would be set right immediately.  Having regard to the fact that the Petitioners herein had accepted to rectify the defects even after the expiry of the warranty period, and as a goodwill gesture had agreed not to charge for the same, the argument of the Petitioners that the Complainants had not adhered to Section 13(1)(c) of the Act, as they have not sent the subject vehicle to an authorized laboratory for testing, does not arise.

13.   Letter dated 17.10.1997 acquires importance and a brief perusal of the same clearly shows that the Petitioner/Dealer had agreed to replace LH & RH side members; replace cross members; modify the suspension free of cost on goodwill basis.  It is further stated in the copy to the manufacturer’s Jaipur Office that the labour and hardware cost would be borne on 100% goodwill basis.  It is apparent that the only reason why the vehicle was not returned to the Complainants was because they had not paid the bills.  Having agreed to carry out all the repairs as a goodwill gesture and then subsequently demanding that the Complainants should pay for the repairs, is unreasonable. The job cards also depict that the vehicle had the same problems constantly appearing at regular intervals.  This establishes that the vehicle was suffering from manufacturing defects for which the Complainants cannot be made to pay.

 14.   The Petitioners detaining the vehicle only on account of non-payment of labour charges after having agreed to rectify the defects as a goodwill gesture, tantamounts to deficiency in service on the part of the manufacturer as well as the dealer. This has caused monetary loss as well as mental agony to the Complainants.  However, having regard to the fact that the vehicle has been repossessed by the Finance Company, the direction of the District Forum to hand over the truck after removing the manufacturing defects, is inexecutable.

 15.   It is pertinent to note that the Complaint pertains to the year 1997 and the third direction of the District Forum with respect to damages of ₹500/- per day from 2.10.1997 is found to be excessive and is hereby modified.  We find it just and reasonable to award a lumpsum amount of ₹2 lakhs towards compensation for monetary loss and also for the mental agony suffered.

 16.   The Complainants filed an affidavit stating that the following amounts have been expended by them:-

(i)     An      Initial   amount of ₹1,06,268/- and  EMIs  of       ₹4,23,700/-paid to the Finance Company.

(ii)    An amount of ₹2,50,000/- towards expenditure for chassis building, painting, seats and tyre replacement etc.;

3. Amounts of ₹17,000/-,₹16,000/- and ₹16,000/-, charged by Ashok Leyland Finance Co. towards insurance premium for the years 1996 to 1998 respectively;
4. An amount of ₹36,000/- towards Permits, Taxes  from April, 1996 to March, 1997 and ₹39,000/- as expenses due to breakdown during transportation.

17.   Taking into consideration the invoice value of ₹6,63,312/- and also ₹2,50,000/- spent towards chassis building, painting, seats and tyre replacement etc.,  we find it just and expedient to award an amount of ₹6,84,984/- after deducting 25% towards depreciation as the Complainants had used the truck for a period of two years.  Keeping in view the facts and circumstances of the case, we do not find any substantial ground to allow the other amounts claimed under various heads.

 18.   In the result, these Revision Petitions are allowed in part, modifying the orders of the Fora below as follows:-

∙       An amount of ₹6,84,984/- shall be paid jointly and severally by the Petitioners, i.e. the manufacturer and the dealer to the Complainants;

∙       An amount of ₹2 lakhs shall be paid towards compensation for monetary loss and mental agony suffered; and

∙       Costs of ₹10,000/- shall be paid to each of the Complainants.

19.   The afore-mentioned amounts are directed to be paid by the Petitioners within four weeks from the date of receipt of this order failing which the amount would attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.