Judgment:
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member
1. This appeal is filed by the original O.P.No.1 against the judgment and award passed by the District Consumer Disputes Redressal Forum Kolhapur in Consumer Complaint No.324/2007. While allowing the said complaint the forum below directed original O.P.Nos.1 and 2 to give replacement of transport vehicle No.MH-10-Z-7078 or to refund the amount of cost of the vehicle to the complainant. The forum below also directed both the opposite parties to give to the complainant Rs.32,433/- for the expenses incurred, and Rs.1,000/- as costs. As such, O.P.No.1 Premier Limited has filed this appeal.
2. Facts to the extent material may be stated as under:- One Mr.Devendra Dhondiba Bandgar of M.I.D.C., Kupwad, Tal.Miraj filed the consumer complaint against O.P.No.1 Premier Limited and Excellent Motors O.P.No.2. He averred in his complaint that he had purchased Road Star 2500, transport vehicle No. MH-10-Z-7078 on 26/10/2006 from O.P.No.2, who is authorized dealer of O.P.No.1. After taking delivery of the said vehicle within two months, when he was returning from Sankeshwar to Kagwad, the left side wheel of the vehicle all of a sudden came out. The vehicle was taken to the mechanic, it was repaired temporarily and then it was taken to service centre of O.P.No.2. In the service centre of the O.P.No.2, vehicle was finally repaired and after 13 days, it was given back to the complainant. According to complainant on 09/02/2007, the right side wheel of the vehicle came out again, it was temporarily repaired by O.P.No.2s mechanic. The complainant pleads that both the times he suffered physical harassment, mental suffering and also suffered financial loss. He pleaded that the vehicle sold by the O.P.No.2 and manufactured by the O.P.No.1 is having manufacturing defects and therefore, twice the vehicle suffered sort of accident and he had to incur lot of expenses and inconvenience. He pleaded further that in the month of March, again the vehicle developed mechanical defect. The reverse gear of the vehicle was not working, alignment of the right side wheel was not proper, the temperature of the engine was increasing and after every 40 k.m. run the wheels of the vehicles got heated. Hence, again on 16/03/2007, the vehicle was taken to the service centre of O.P.No.2. It was given back to him on 20/03/2007. There was starting trouble to the vehicle and he got it repaired from O.P.No.2. Then on 25/03/2007, the gears could not be changed and vehicle could not be started. Hence, he had again taken the vehicle to O.P.No.2 for repairs. He therefore averred that the vehicle was having so many defects, they were inherent manufacturing defects. Therefore, he alleged that both Opposite Parties supplied him a defective vehicle. According to complainant, for about 40 days, the vehicle was in the custody of O.P.No.2 for repairs and he spent about Rs.52,430/- over the said vehicle for repairs. He, therefore, filed consumer complaint and prayed that O.P. should be directed to replace the vehicle by taking back the defective vehicle or alternatively he should be given back the cost of the vehicle. He also asked for Rs.10,000/- as the costs of the complaint. He filed an affidavit and documents in support of his complaint.
3. O.P.No.1 filed written statement and denied the averments made by the complainant. O.P.No.1 pleaded the as per the conditions of warranty, the complaint should have been filed in Mumbai and not in Kolhapur. O.P.No.1 further pleaded that the vehicle was not having any manufacturing defect. The driver was negligent in driving the vehicle and therefore the wheels used to come out of the axel. O.P.No.1 pleaded that every time, when the vehicle was brought for repairs, they repaired it and therefore, there is not manufacturing defect. O.P.No.1 further pleaded that complainant committed breach of warranty policy clause Nos.6, 12 and 13 and therefore, he is not entitled to get any relief as against it.
4. O.P.No.2 filed written statement and denied the allegations made by the complainant. He, however, admitted that the vehicle was purchased by the complainant from him, but, he pleaded that the vehicle was purchased for commercial use and therefore, the complainant cannot file the consumer complaint. According to O.P.No.2, complainant had made some changes in the specifications of the model, increased length of chassis, the body erected on the vehicle was weighing about 200 to 250 k.g. So, increase in weight was responsible for the defects, noticed by the complainant. He also pleaded that the complainant was driving the vehicle ignoring the provisions contended in the vehicle manual supplied to the complainant. He also pleaded that the complainant was given best of services. Therefore, the complaint is devoid of any substance and should be dismissed with compensatory cost. O.P.No.2 also filed certain documents, affidavit, warranty clauses etc..
5. On hearing all the parties concerned the forum below held that complainant was consumer and he could file consumer complaint against both the opponents. Forum below also held that vehicle given to the complainant by opposite parties was defective one and it was having manufacturing defects and as such it was pleased to allow the complaint and it gave direction in its award as mentioned in the opening para of this complaint. As such Premier Limited O.P.No.1 filed this appeal.
6. We heard submissions of Ms.Amruta Joshi for the appellant and Mr.D.M.Dhavate for the respondent. We perused the impugned award. We are finding that the vehicle supplied by the appellant through O.P.No.2 was surely defective one. The vehicle was giving lot of trouble to the owner. Every now and then one or other wheel of the vehicle would come out of slot or angle of the vehicle and the complainant was every now and then required to call local mechanic and take the vehicle to the service centre of O.P.No.2, where the vehicle would be repaired. Complainant has noted that for about 40 days vehicle was in the custody of service centre of O.P.No.2. While filing the complaint, the complainant produced on record the report of D.G.Thombare, Professor and Auto Engineering Department Head of Rajarambapu Institute Of Technology, who filed an affidavit in support of the complainants case and in his affidavit he listed the defects and he gave clear-cut opinion that failure was caused due to design and material problem. The location of the failure, nature and type of failure is caused because of unsafe and improper design and or improper material. Thus, relying on this report of expert, who is Professor in Auto Engineering Department of Rajarambapu Institute Of Technology, the forum below came to the guarded conclusion that there was material defect in the vehicle manufactured by appellant and sold to the respondent by O.P.No.2, therefore, it was pleased to allow the complaint.
7. We find that the order passed by the forum below is just and proper and is sustainable in law. There was manufacturing defect in the vehicle and it was proved from the experts affidavit and certificate. Expert was Professor and Auto Engineering Department Head of Rajarambapu Institute Of Technology and the said expert clearly mentioned that failure was due to design and material problem. There was improper design and improper material used in the vehicle and design was unsafe. Thus, the expert clearly gave verdict against the manufacturing company, the appellant herein. In this view of the fact the order/award passed by the forum is appearing to be just and proper.
8. It was tried to be contended before us that the vehicle was transport vehicle purchased by the respondent for commercial use and he could have filed Civil Suit and Consumer complaint was not tenable in law. However, there is no substance in this submission. The complainant owned only one vehicle and for his personal gain he was using the vehicle to earn his livelihood. He was not giving it on hire to the other persons, but, using it on his own. Therefore, it cannot be said that he was using the vehicle for commercial purpose. We therefore hold that there is no substance in the objection taken by the appellant. It was tried to be argued by the Counsel for the appellant that the vehicle was sold to Bombay jurisdiction. Somewhere in warranty clause, company had mentioned that it was sold subject to Bombay jurisdiction. But, such a mention in the warranty manual does not oust the jurisdiction of district forum to entertain and try such a complaint. It was a consumer complaint. The vehicle was purchased within the jurisdiction of Kolhapur. There was manufacturing defect in the vehicle and the Kolhapur district forum had jurisdiction to entertain the complaint. So, we are finding no substance in the submissions made by the Learned Counsel for the appellant.
9. In the totality of the circumstances, we are finding that there is no substance in the appeal preferred by the O.P. and it is liable to be dismissed. Hence, the following order.
Order:
1. Appeal stands summarily rejected.
2. Parties are left to bear their own costs.
3. Copies of this order being sent free of cost to all parties concerned.