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2006 DIGILAW 370 (UTT)

GARHWAL MANDAL VIKAS NIGAM v. COMMERCIAL MOTORS

2006-07-18

IRSHAD HUSSAIN, LAXMI SINGH

body2006
ORDER This is complainant’s appeal against the order dated 24.10.2005 passed by the District Forum, Dehradun dismissing the Consumer Complaint No. 293 of 1999, Garhwal Mandal Vikas Nigam Vs. M/s Commercial Motors, Dehradun and another. 2. Complainant purchased a Tata Sumo vehicle registration No. UP07G/4652 from opposite party No. 1. Opposite party No. 2 is the manufacturer of the vehicle. The purchase was made on 23.06.1997. Complainant alleged that the vehicle was having manufacturing defects right from the very beginning and thus started giving trouble when engine oil started leaking soon after the purchase. It was also averred that knowingly a defective vehicle was delivered to the complainant by opposite party No. 1 and that the required repairs were also not carried free of charges and cost during the warranty period of (a) A direction to opposite party No. 1 to pay Rs. 31,486/- together with interest @24% p.a. received towards repair charges of the said vehicle from the complainant. (b) A further direction to the opposite parties to pay sum of Rs. 2,00,000/- as damages on account of the vehicle remained with them in connection with the repairs for a very long period of 109 days w.e.f. 03.09.1998 to 21.12.1998. (c) A further direction to the opposite parties to pay Rs. 5,000/- as expenses of the legal notice and litigation. (d) Any other appropriate relief to which the complainant may be held entitled on the facts and circumstances of the case. 3. The complainant was resisted mainly on the ground that a new fault free vehicle was sold to the complainant; that the complainant had himself failed to act as per the provisions of owners manual, service book and warranty friendly notes; that the complainant failed to get all the services performed upto the time of the claim and when in the month of September 1998 the vehicle was brought for removal of some defects, they where not in a position to carry out the repairs under warranty and the complainant was accordingly informed through various letters in that regard and that the repair charges were paid by the complainant after getting fully satisfied with the repair work undertaken in the vehicle. 4. 4. Opposite parties also raised a plea that the vehicle was purchased for commercial purpose and, therefore, the complainant not being a consumer as envisaged by the provisions of the Consumer Protection Act, 1986, the complaint was not legally maintainable. 5. The District Forum on an appreciation of the material on record dismissed the complaint by the impugned order. It observed that though the vehicle was purchased for commercial purpose but the complainant fall in the category of a “consumer” as envisaged by the Consumer Protection Act, 1986 in view of the fact that according to the complainant, the defect occurred in the vehicle by reason of leak of the engine oil in the warranty period of 18 months and, therefore, the complaint was legally maintainable. The District Forum did not accept the claim of the complainant that the said vehicle was having manufacturing defect right from the very beginning and further opined that the complainant failed to maintain and handle the vehicle properly and to observe the owners manual, service book and warranty friendly notes in relation to the maintenance of the vehicle. It was then held that the opposite parties were thus rightly entitled to charge for the repairs and the complainant was not entitled to seek recovery of the amount paid as repairs charges to the opposite party No. 1. It was also held that the vehicle kept idle at the workshop of the opposite party No. 1 from 03.09.1998 to 21.12.1998 due to correspondence between the parties regarding the actual expenses of the repairs which was to be carried out at the cost of the complainant and, therefore, the complainant was not entitled to any damages for delay in having the vehicle repaired. 6. We have heard the Learned Counsel for the parties and have carefully considered their submissions in the light of factual and legal aspects of the case. It need to be stated at the outset that there is no merit in this appeal and the same is liable to be dismissed. 7. The reasons are that the complaint does not disclose any such defect or fault in the vehicle which in a true sense may be termed as manufacturing defect or fault in the vehicle. It need to be stated at the outset that there is no merit in this appeal and the same is liable to be dismissed. 7. The reasons are that the complaint does not disclose any such defect or fault in the vehicle which in a true sense may be termed as manufacturing defect or fault in the vehicle. There is absolutely nothing on record to support the allegation as contained in para 3 of the complaint that a defective vehicle was sold to the complainant knowingly that nobody care for proper check of the vehicle purchased for an establishment of the government. If there were manufacturing faults or defects in the vehicle, these were required to be disclosed with reference to the various major parts in the complaint. It is not so except that the engine of the vehicle developed leakage few months after the purchase of the vehicle and this defect was reported to the opposite party No. 1 in writing on 18.02.1998. Learned Counsel for the complainant highlighted this defect to support the allegation that there was manufacturing defect in the vehicle but we fail to find any merit in the argument in view of the fact that oil leakage of the engine may be due to minor defect of consumable oil seal and also by reason of normal wear and tear of the same by regular and negligent use of the vehicle. We also cannot loose sight of the fact that the vehicle was purchased on 23.06.1997 and it was brought to the workshop of opposite party No. 1 on 19.02.1998 and at that time the vehicle had already run 16261 kms as is evident from job order No. 5283 of the said date (Paper No. 136). Minor repairs were attended to vide this job order and oil leakage and other minor repairs were carried out showing charges of Rs. 85/- only. Apart from this, there is no document on record as may reveal any major defect in the vehicle till that day and particularly on account of any manufacturing fault or defect. 8. Coming to another aspect of the case, it is not in dispute that the complainant neither produced owners manual, service and warranty book, nor filed the log book of the vehicle which no doubt must have been maintained as per instructions of the government undertaking. 8. Coming to another aspect of the case, it is not in dispute that the complainant neither produced owners manual, service and warranty book, nor filed the log book of the vehicle which no doubt must have been maintained as per instructions of the government undertaking. There was, thus, no evidence on record from the side of the interval in an authorized workshop or service station as is provided in the owners manual and service book of the vehicle. The job order of the opposite party No. 1 reveal that after the purchase, the vehicle was brought to the workshop of the opposite party No. 1 for service at 4431 kms on 06.08.1997 vide order No. 2392 (Paper No. 134) and subsequently at 8453 kms on 25.10.1997 vide job order No. 3541 (Paper No. 135) and that thereafter the vehicle was not taken to the workshop of the opposite party No. 1 for regular service as per instructions of the owners manual and service book. If the complainant got the service of the vehicle done subsequently at any other authorized workshop or service station, the same could have been verified from the service book which was not produced on the ground that the same had been lost. This could have however been proved by production of log book but it appear that the same was also deliberately withheld and was not brought on record. Under these circumstances, a legitimate inference was rightly drawn by the District Forum that the vehicle was not properly maintained and handled by the complainant in as much as the same was not regularly put to service as per the owners manual and service book instructions which may have caused trouble in the vehicle as a result of wear and tear requiring replacement of consumable items and other repairs. In the face of this situation, we are unable to find favour with the submission of the Learned Counsel for the complainant that the District Forum failed to consider the evidence in proper prospective and reached to an unreasonable conclusion as stated above. In the face of this situation, we are unable to find favour with the submission of the Learned Counsel for the complainant that the District Forum failed to consider the evidence in proper prospective and reached to an unreasonable conclusion as stated above. We are convinced that there is no such material on record as may have reasonably supported the allegation of the complainant and rather the material on record warranted a finding that there was utter negligence on the part of the complainant in proper maintenance of the vehicle by way of its proper servicing from time to time as per schedule and that the various defects in the vehicle were the resultant besides the normal wear and tear and use of the vehicle. 9. It is not in dispute that the said vehicle required major repairs including engine overhauling in the month of December 1998. In response to the notice of the counsel of the complainant, opposite party No. 1 categorically averred, in letter dated 12.11.1998 (Paper Nos. 58 & 59) that in view of the serious deficiency and production of service bills procured from unauthorized service stations, the vehicle does not qualify for warranty repairs. The complainant was thus advised to get the repair (engine overhauling etc.) done on payment. The complainant was also asked to deposit a sum of Rs. 25,000/- in advance to enable the opposite party No. 1 to undertake the repairs on the vehicle. It is also pertinent to mention that the Deputy General Manager of the complainant vide his letter dated 03.12.1998 (Paper No. 142) wanted to know as to how much amount in advance required to be deposited to undertake the repairs including engine overhauling of the vehicle. The reply was given on 05.12.1998 (Paper No. 143) where in opposite party No. 1 reiterated that the estimated cost of the repairs has already been intimated vide letter dated 23.10.1998 which was received by Sh. Naresh Kumar, the driver of the complainant. Subsequently by letter dated 07.12.1998 (Paper No. 144) the Deputy General Manager of the complainant informed the opposite party No. 1 that a cheque for sum of Rs. 25,500/- is being sent towards advance of the expenses of the repairs to be undertaken on the vehicle. Naresh Kumar, the driver of the complainant. Subsequently by letter dated 07.12.1998 (Paper No. 144) the Deputy General Manager of the complainant informed the opposite party No. 1 that a cheque for sum of Rs. 25,500/- is being sent towards advance of the expenses of the repairs to be undertaken on the vehicle. The correspondence clearly indicate that the officials of the complainant were reconciled to the fact that repairs on the vehicle were not to be qualified under the warranty period and that the cost of the repairs was to be borne as such by the complainant. 10. After receipt of the cheque for the above sum of Rs. 25,500/-, the repairs were undertaken and the total charges for the repairs came to Rs. 31,486/- and, therefore, opposite party No. 1 called upon the complainant to pay the arrears of Rs. 5,986/- after adjustment of Rs. 25,500/-. It was then for the first time that the Deputy General Manager of the complainant vide his letter dated 13.01.1999 (Paper No. 73) claimed that sum of Rs 25,500/- was paid earlier and that the payment of remaining amount of Rs. 5,986/- is now being made under protest. Referring to this correspondence, Learned Counsel for the complainant submitted that the complainant never conceded to the preposition that the vehicle does not qualify for warranty repairs and the payment used to be made to the opposite party No. 1 under protest and that the opposite party No. 1 wrongly took the stand that the complainant was reconciled that the vehicle does not qualify for warranty repairs in view of the same being not maintained according to the owners manual, service book and warranty friendly notes. Considering the above correspondence and earlier finding that the vehicle was not maintained and serviced according to the provisions of the owners manual, service book and warranty friendly notes, we see no merit in the said argument and that the protest vide letter 13.01.1999 (Paper No. 73) was made in regard to the payment of Rs. 5,986/- only thinking that the repairs were to be undertaken within the sum of Rs. 25,500/- paid in advance for that purpose by the complainant. In a situation like this, the complainant could not have made a claim for return of Rs. 5,986/- only thinking that the repairs were to be undertaken within the sum of Rs. 25,500/- paid in advance for that purpose by the complainant. In a situation like this, the complainant could not have made a claim for return of Rs. 31,486/- received by opposite party No. 1 towards repairs including the engine overhauling of the vehicle in the month of December 1998 and that too to the full satisfaction of the complainant as is evident from satisfaction note dated 21.12.1998 (Paper No. 147) duly signed by the driver, the agent of the complainant. 11. From above it is also obvious that prolong correspondence between the parties preceded the actual repairs undertaken on the vehicle in the month of December 1998. As a result of this, the vehicle remained at the workshop of the opposite party No. 1 for no fault of it and, therefore, complainant could not have claimed that it was deprived of the use of the vehicle during the period of 109 days due to inaction on the part of the opposite party No. 1 and as such the complainant was not entitled to claim damages amounting to Rs. 2,00,000/- claimed per relief (b) in the complaint. The view taken by the District Forum in that regard is also reasonable and needs no interference under the appellate jurisdiction of the Commission. 12. It was lastly argued that the opposite party No. 1 had not properly undertaken the repairs including the engine overhauling of the vehicle in the month of December 1998 and this was the reason that the engine required overhauling again in the month of December 1999 as averred in paragraph No. 46 of the affidavit of Sh. M.S. Bisht, an officer of the complainant (Paper Nos. 46 to 53) and for the subsequent repair, sum of more than Rs. 15,000/- was paid to the opposite party No. 1. Invoice (Paper Nos. 76 & 77) and cash memos (Paper Nos. 78 & 79) were filed in support of the said averment. Even if the vehicle required repairs and engine overhauling again after a period of one year in December 1999, then also it cannot be safely said that the repairs undertaken a year ago were not upto the mark and of the required standard. 78 & 79) were filed in support of the said averment. Even if the vehicle required repairs and engine overhauling again after a period of one year in December 1999, then also it cannot be safely said that the repairs undertaken a year ago were not upto the mark and of the required standard. As stated above, satisfaction note was then issued on behalf of the complainant and further that nothing was brought on record in the form of log book to show as to the actual mileage undertaken by the vehicle during the said intervening period of about one year. It is not in dispute that the vehicle in question used to be plied in the high attitudes of Garhwal Region and it cannot be doubted that the vehicle not maintained and wear & tear and require early engine overhauling and other repair works. At any rate, the evidence of actual mileage undertaken by the vehicle during the period of one year could have been the best benchmark to determine as to whether the engine would have required overhauling or not again after a period of one year. Since it had not been shown, we see no merit in the argument of the Learned Counsel that proper repairs etc. were not undertaken by the opposite party No. 1 and that the complainant had been put to unnecessary loss and expenses on account of deficiency in service in that regard. 13. For the reasons aforesaid and the evidence discussed above, we are convinced that the order of the District Forum is based on proper and fair appraisal of the same and it does not warrant any interference. The appeal fails and is liable to be dismissed. 14. Appeal is dismissed. No order as to costs.