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2005 DIGILAW 303 (UTT)

Manager, Commercial Motors v. Meenu Batra

2005-07-27

LUXMI SINGH, SURENDRA KUMAR

body2005
JUDGMENT Surendra Kumar, Acting President—This is an appeal against the order dated 19.2.1998 passed by the District Forum, Pauri Garhwal whereby the complaint of the complainant was allowed for a compensation of Rs. 10,000/- and costs of litigation of Rs. 250/-. It was further directed that if the amount is not paid within a month, the appellant shall pay interest @ 18% on this amount. 2. The brief facts of the case are that the complainant purchased a motor chassis from opposite party No. 1 and got the body of the bus prepared on the chassis. It is alleged that when the bus was going from Kotdwar to Pauri, on the way near Devikhal the engine of the bus bursted. Information was given to the opposite party and the vehicle was toed to Kotdwar. The opposite party removed the engine and sent it to Bareilly for getting the new engine and said that within a week the new engine shall be received. It is further said that the vehicle kept standing from 25.3.1995 to 22.4.1995, due to which the complainant suffered a loss of Rs. 29,000/-. Thereafter the complainant filed the complaint before the Learned Forum. 3. The opposite party filed written statement and alleged that the warranty of the chassis has been issued by the Telco. When the information regarding defect in the engine was received, the same was intimated to the Telco and it was asked to supply new engine. The delay has not been caused by the opposite party. There is no deficiency in their services. 4. The Learned Forum after taking the evidence of the parties and hearing them allowed the complaint, against which order the present appeal has been filed. 5. We have heard the Learned Counsel for the parties and gone through the records. There is no dispute between the parties that the engine got defective and it was replaced. There is also no dispute that the vehicle kept standing from 25.3.1995 to 22.4.1995 for want of supply of new engine. The complainant purchased the vehicle after taking loan from the bank. Due to standing of the vehicle, the complainant had to pay extra interest and also suffered mental agony and spent a sum of Rs, 700/- as toeing charges of the vehicle. The complainant purchased the vehicle after taking loan from the bank. Due to standing of the vehicle, the complainant had to pay extra interest and also suffered mental agony and spent a sum of Rs, 700/- as toeing charges of the vehicle. We have to see that whether there is any deficiency in service on the part of the appellant or not and who is responsible for supply of new engine to the complainant. It is alleged that the vehicle kept standing idle from 25.3.1995 to 22.4.1995. In para 6 of the complaint, it is alleged that on 27.3.1995 the mechanic of the opposite party sent the defective engine to Bareilly for replacement. In para 8 of the complaint, it is said that there was 29 days delay and the complainant suffered a loss of Rs. l.000/- per day. The appellant in para 5 of the written statement has pleaded that immediately on receipt of information regarding the defect in the engine, the mechanic was sent to the spot. In para 6, it is stated that the engine was sent to Bareilly. In additional pleas, it is pleaded that in case of defect in spare parts in the vehicle manufactured by Telco, the appellant has to complete the formalities regarding the claim after consultation with the Zonal Office of the Telco. In para 11, it is said that on 27.3.1995 they received the engine and sent it immediately to Bareilly because there is no facility of replacement of engine in the Kotdwar office of the appellant. They sent the engine to Telco along with relevant papers and the new engine was supplied by Spare Parts Division Thane, Maharashtra. When the new engine was brought to Kotdwar, the mechanic of the appellant replaced the engine. So there was no delay on the part of the appellant in replacing the engine. 6. The affidavit of Sri J. R. Kotnala, Manager, Commercial Motors has been filed and he has alleged that on 27.3.1995 the complainant brought her vehicle in the office of the appellant and after removing the engine, the same was sent to Bareilly the same day. The gate pass has been filed, in which it is mentioned that goods received on 18.4.1995. This gate pass has been issued by Telco, Gazipur, Paiparganj, Delhi. The gate pass has been filed, in which it is mentioned that goods received on 18.4.1995. This gate pass has been issued by Telco, Gazipur, Paiparganj, Delhi. The appellant has also filed papers to show that there was no delay on its part in replacement of the engine. The warranty requisition dated 19.4.1995 has been filed which shows that the accessories of engine were issued on 19.4.1995 by Commercial Motors, Pune. 7. Thus it is established that the engine was immediately sent for replacement to Bareilly office which has also been admitted by the complainant in para 5 of her affidavit. The vehicle was manufactured by Telco and Spare Parts Division of Telco is liable to change the spare parts etc. of the vehicle and some procedure for replacement of the spare parts is also to be followed. However Telco has not been made party to the complaint but Telco immediately took action and supplied the engine and sent the same to appellant and the appellant has also immediately replaced the engine and as such there was no deliberate delay or deficiency in service on the part of the appellant. 8. The Learned Counsel for the complainant referred the ruling in Bhag-wati Prasad v. Chandramaul1, in which it has been held that relief should be founded on pleading made by parties. But in this particular case the complainant is not entitled to any relief because no deficiency in service on the part of the appellant is proved or established by the evidence on record. The Learned Counsel for the appellant referred judgment of this Commission in M/s. Commercial Motors Sales (P) Ltd. v. Smt. Meenakshi Bahuguna2, in which the vehicle was given to the opposite party for repairs on 19.12.2001 and the vehicle was delivered back on 10.4.2002 and it was held that there was no correspondence earlier that the delay is being caused by the opposite party and if the delay is not deliberate, there is no deficiency in service. 9. In view of what has been said above there was no deliberate delay on the part of the appellant and there was no deficiency in service of the appellant. The Learned Forum did not properly appreciate the facts of the case. Therefore this appeal is fit to be allowed and the order under appeal is liable to be quashed. ORDER The appeal is hereby allowed. The Learned Forum did not properly appreciate the facts of the case. Therefore this appeal is fit to be allowed and the order under appeal is liable to be quashed. ORDER The appeal is hereby allowed. The order dated 19.2.1998 passed by the Learned Forum is hereby set aside. The complaint is hereby dismissed. Costs shall be easy. Appeal allowed. *******