K.K. Srivastava, President:
1. This is an appeal filed against order dated 7.1.2004 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 865 of 2001, Jasvinder Singh v. CMPL and Another.
2. The respondent/complainant purchased a Kinetic two-wheeler bearing chassis No. 30026529, Engine No. 30021234 manufactured by the Kinetic Engineering Limited, appellant No. 2 from appellant No. 1 -CMPL, a dealer of the manufacturer at Chandigarh on 16.10.2000 for a sum of Rs. 28,250/- vide Annexure C-1. It is alleged that the complainant purchased the said two-wheeler for being used by her daughter who was studying and attending besides college, tuition classes. The said two-wheeler suffered from various defects including the problem of starting the vehicle. It is further alleged that the said two-wheeler had to be taken to the workshop of the appellants several times, the details of which are given in Para 1 of the complaint, which shows job card numbers and the dates beginning from 30.11.2000 upto 13.7.2001 and the number of visits are ten. The respondent/complainant spent a sum of Rs. 350/- per visit for taking the two-wheeler to the workshop of the appellants several times, the details of which are given in Para 1 of the complaint, which shows job card numbers and the dates beignning from 30.11.200 upto the 13.7.2001 and the number of visits are ten. The respondent/complainant spent a sum of Rs. 350/- per visit for taking the two-wheeler to the workshop of the appellants.
3. Apart from this, the respondent/complainant and his daughter suffered considerable physical harassment and mental agony. The two-wheeler had covered only a distance of 5300 kms. The complainant prayed for compensation of a sum of Rs. 15,000/- for mental and physical harassment and also prayed for replacement of the vehicle, aforesaid, on account of having manufacturing defects in it.
4. In the written statement, the appellant No. 1 - CMPL denied the allegations made in the complaint and alleged that these allegations were vague. It was stated that whenever the complainant faced any problem with the two wheeler and brought the same to the workshop of appellant No. 1, they promptly attended to it and repaired the two-wheeler. Out of the ten job cards bearing No. 7957 (30.11.2000), 7974 (7.11.2000), 8044 (11.11.2000), 8321 (15.11.2000) C-1, 98392 (11.12.2000), 10868 (16.1.2001), 14500 (7.5.2001) C-2, 14592 (21.5.2001), 15642 (23.6.2001) C-3 and 16358 (13.7.2001) C-4, four job cards marked Annexures C-1 to C-4 were filed before the District Forum. The remaining job cards were, however, not filed. It was alleged that as per Annexure C-1, there was starting problem in the two-wheeler and the carburetor required cleaning, which was done and the two-wheeler was returned to the complainant after his entire satisfaction.
5. Vide Job Card (Annexure C-2), there was again starting problem, kick problem and some problem of some sound, which were attended to the satisfaction of the complainant. Vide Card (Annexure C-3), the average of the two-wheeler was checked and the vehicle was returned to the complainant to his entire satisfaction. It is alleged that vide Job Card (Annexure C-4), the complainant came with a grievance of low pick-up, unusual sound, self-starting problem and the problem of clutch, which were attended to and the vehicle was returned to the complainant to his full satisfaction. The appellant No. 1 - CMPL further pointed out that in the Job Card (Annexure C-2), it was mentioned that the vehicle had scratches on its body, which indicate that the two-wheeler had involved in some accident and some defects appeared on account of it.
6. Apart from it, it was pleaded that the working of the two-wheeler depended on a number of factors like maintenance, quality of petrol, lubricant used, amount of excessive brakes applied and many other factors. He starting problem arose due to the non-maintenance of the battery and if the customer used proper distilled water in the battery, then there would be no problem. It was, however, denied that there was any serious problem with the vehicle aforesaid. The appellant No. 2 - Managing Director, Kinetic Engineering Limited, D1 Block, Plot No. 18/2, Chinchwad, Pune adopted the written statement filed by CMPL/appellant No. 1.
7. The complainant filed his affidavit and placed on record copies of Invoice (cash memo) C-1, Sale Certificate (C-2), temporary registration certificate issued by appellant No. 1 to the complainant (C-3), letter dated 29.8.2001 (C-5) from National Consumer Awareness Group, Sector 34-D, Chandigarh making a request to the appellant to take suitable action in the complaint (C-6). The letter was sent to the appellants and the certificates of posting are C-4, C-7 was another letter dated 14.11.2001 sent by the complainant to the appellants. The appellants filed affidavit of Smt. Prabhjot Kaur, Showroom Incharge of appellant No. 1-CMPL and filed job cards, which incidentally were marked as C-1 to C-4. The District Forum mentioned in Para 5 of the impugned order that they should be marked as Annexures R-1 to R-4.
8. The District Forum dealt with the preliminary objection raised regarding the non-filing of affidavit by the daughter of the complainant who was actually plying the two-wheeler and held that this contention was not material and the same was repelled. The District Forum held that out of ten job cards, only four were placed on record and the remaining six were not produced and no reason was given for this lapse and, as such, the District Forum raised a presumption that if the remaining six job cards were produced, they would not have supported the defence of the appellants and would have rather lend support to the case of the consumer/complainant.
9. The District Forum referred to the judgment of the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as National Commission) in the case of âM/s. Scooter India Limited and Anr. v. Madhabananda Mohanty and Ors.â Revision Petition No. 240 of 2002 decided on 7.2.2003, where the Honble National Commission held, inter alia, that it is not always necessary for the consumer to give expert testimony, though if he does so it will add to the weight of evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of defect. It was further held that if the defects are insignificant then it could not be case of replacement or refund. A Consumer Forum has, however, to take into consideration the consumers state of mind as well. After all, he would have invested a new vehicle to buy peace of mind hoping that the vehicle would be trouble-free and dependable. The Honble National Commission further held that the manufacturer has to provide adequate repair facilities close to the are a where the vehicle is sold. As a matter of fact, accessibility of repair facility is implicit when a new vehicle is sold.
10. The District Forum held that in the present case, the complainant succeeded in showing that the vehicle sufferd from manufacturing defect or from such significant defects, which the appellamts were not able to rectify. Resultantly, the complaint was partly allowed. The O.Ps. were directed to replace the vehicle in question with a brand new defect-free two-wheeler of the same make, type and description and also were directed to pay Rs. 3,000/- to the complainant as compensation for mental and physical harassment besides Rs. 1,000/- as costs of litigation.
11. Notice of appeal was served on the respondent/complainant who put in appearance through Mr. Balwinder Singh, Advocate. The record of the complaint case was summoned. We have heard the learned Counsel for the appellants Mr. Arun Dogra, Advocate and the learned Counsel for the respondent/complainant Mr. Balwinder Singh, Advocate. We have also carefully perused the impugned order and the record of the complaint case.
12. The first contention of the learned Counsel for the appellants was that the two-wheeler, which was purchased by the respondent/complainant was not used by him and instead he permitted the same to be used by his daughter and, as such, this complaint is not maintainable as the respondent/complainant clearly averred that he purchased the Kinetic Style two-wheeler for his daughter from M/s. CMPL, Chandigarh on 16.10.2000. It will thus be seen that the complainant did not conceal this fact that the aforesaid two-wheeler was purchased for the use by his daughter to attend her college/tuition classes.
13. The definition of âConsumer as contained in Sections 2(1)(d)(i) as well as (ii) of Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person [Section 2(1)(d)(i)] includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person [Section 2(1)(d)(ii)].
14. Since the respondent/complainant made an averment in the complaint that he had purchased the two-wheeler for use by his daughter, the daughter used the two wheeler with the approval and consent of her father i.e. the respondent/complainant and thus the complainant as well as his daughter would be covered by the definition of âconsumer. We thus find no merit in the first submission made by the learned Counsel for the appellants.
15. In the second place, the learned Counsel for the appellants contended that the Kinetic Style two-wheeler purchased by the respondent/complainant had minor problems, which were attended to and repaired and there was no significant defect in the said two-wheeler. Apart from it, it was contended that probably the aforesaid two-wheeler met with an accident and the complainant was taking undue advantage of it. The learned Counsel for the appellants also submitted that the complainant failed to prove that the afroesaid two-wheeler suffered from any manufacturing defects.
16. So far as the defects in the two-wheeler in question is concerned, it is not disputed that the two-wheeler had to be taken for repairs on as many as ten dates and the details of the job cards prepared on each visit have been mentioned in the complaint case. Out of these ten job cards, the appellants produced only four job cards, which though marked as Annexures C-1 to C-4 by the appellants have been ordered to be re-marked by the District Forum as Annexures R-1 to R-4.
17. The job card (Annexure R-1) is dated 15.11.2000 bearing job card No. 8321. This job card was prepared on the third visit to the appellants. The first visit was on 7.11.2000 and the second visit was on 11.11.2000. The job card prepared on 7.11.2000 bore No. 7974 whereas job card prepared on 11.11.2000 was bearing No. 8044. The second job card, which has been prepared on record as Annexure R-2 is dated 7.5.2001 and the number of the job card is 14500. It has been shown at Serial No. 7 whereas the first job card (Annexure R-1) was shown at Serial No. 4. The job card mentioned at Serial Nos. 5 and 6 dated 11.12.2000 and 16.1.2001 were not placed on record. Annexure R-3 is job card bearing No. 15642 dated 23.6.2001 and lastly Annexure R-4 is job card bearing No. 16358 dated 13.7.2001, which is the last date of visit to the repair shop of the appellants. The intervening job card shown at Serial No. 8 bearing No. 14592 dated 25.1.2001 has not been produced by the appellants.
18. Annexure R-1 shows that there was starting problem and the same was removed by cleaning the carburetor. Annexure R-2 showed that there was complaint of starting problem, kick problem and some problem of some sound. Annexure R-3 is the job card for checking the average given by the two-wheeler. The last job card Annexure R-4 shows that the complainant had grievance of low pick-up, unusual sound, self-starting problem and the problem in clutch. Even if these four job cards, which have been placed on record, be considered, they showed mainly the starting problem. kick problem and problem of running engine giving some unsual sounds. It was claimed by the appellant that on all four occasions, the two-wheeler was, after repairs, given back to the complainant and repairs were carried out to the full satisfaction of the complainant. This fact has been seriously disputed by the complainant who filed his affidavit wherein, he deposed in Para 2, inter alia as under:
â2. That during last nine monhths, this vehicle did not start either from residence or from college and has to be brought to service station of O.P. No. 1 at I/Area on rickshaw on the dates with job cards shown below for servicing with various problems....â
19. In Para 3 of the affidavit, it was deposed that the dates mentioned earlier were just in respect of some occasions but the equal number of times, the vehicle was presented to service station at CMPL in running condition with similar problem. In para 5, he deposed, inter alia, that âthe consumer only came to know about the machine when it was used for longer period. From the showroom display and by the test ride of the vehicle for one or two kilometres the performance of the machine cannot be judged. Surprisingly, deponent observed the leakage of fuel and when the vehicle was taken to the O.P. No. 1 on 30.7.2002 it was told by the Service Engineer that the fuel tank has developed crack from the bottom of the tank which is the cause of leakage. This justify the claim of the deponent that there is some manufacturing defect in the vehicle...â
20. Smt. Prabhjot Kaur, Showroom Incharge has deposed in Para 1 of her affidavit that she had filed a detailed reply in its capacity as O.P. No. 1 on 1.3.2003, the contents of which may be read as an integral part of this afidavit to avoid repetition. It may be pointed out that the written statement which was filed by O.P. No. 1 does not disclose the name of the person who verified the contents of the written statement and signed the same. There is stamp affixed showing âFor CMPL Motors Pvt. Ltd.â, then legible/illegible short signatures and below the signatures is mentioned âDirectorâ. Even the affidavit shows that initially the affidavit was prepared for some other person and subsequently, the name of Smt. Prabhjot Kaur, Showroom Incharge was mentioned in hand. The averment made in Para 1 of the affidavit does not appear to be a correct statement that Smt. Prabhjot Kaur filed detailed reply on 1.3.2002. Even the date, which is typed on the written statement is 28.2.2002. The Zimini order sheet, however, shows that the reply was filed on 1.3.2002. The Vakalatnama on record shows that Shri Vishwas Ahuja, Advocate was engaged to defend CMPL (O.P. No. 1) and here also, the signatures of the Director of CMPL have been appended. The verification of the affidavit of Smt. Prabhjot Kaur, Showroom Incharge has been mentioned in these terms:
âVerified that the contents of above said affidavit of mine are true and correct to my knowledge and belief. No part of it is false and nothing has been concealed therefrom.â
21. In para 2 of the affidavit, Smt. Prabhjot Kaur denied the averments made by the complainant in his affidavit dated 31.7.2002 in Para 5 that the vehicle was taken to O.P. No. 1 on 30.7.2002 where he was told by the service engineer that the fuel tank had developed a crack. It was further deposed that this allegation is baseless and frivolous allegation and rather it supported the instance of O.Ps. that the vehicle in question still running perfectly on road as on date. In Para 3, which is the last para of the affidavit, it was deposed that the vehicle sold by the O.P. is without any defect whatsoever and the present complaint is frivolous complaint which deserves dismissal.
22. The District Forum after dealing with the evidence placed on record and the affidavits held that the withholding of six job cards by the appellants for no valid reason is sufficient to raise a presumption against the appellants to the effect that if produced, these would not have supported the defence version of the appellants and would have lend support and corroboration to the case of the consumer. The District Forum relied on the judgment of the Honble National Commission in the case of M/s. Scooters India Limited (supra).
23. In view of the law laid down by the Honble National Commission in the case of M/s. Scooters India Limited (supra), it is not always necessary for the consumer to give expert testimony, though if he does so it will add to the weight of evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of defect. It is further held that if the defects are insignificant then it could not be case of replacement or refund. The Honble National Commission held that a Consumer Forum has, however, to take into consideration the consumers state of mind as well. It was held that after all, he would have invested a new vehicle to buy peace of mind hoping that the vehicle would be trouble-free and dependable.
24. We are of the considered opinion that the District Forum has rightly held that the defects, which emerge from the four job cards, show that the defects were quite significant and they cannot be described to be insignificant. If the vehicle suffered from the starting problem, kick problem, giving some unusual sounds and did not function smoothly, the case would be squarely covered by the proposition of law as laid down by the Honble National Commission in the case of M/s. Scooters India Limited (supra) at Serial No. (d) and would relieve the respondent/complainant from giving any expert testimony. There is credible evidence led by the complainant in the shape of his affidavit that the use of the vehicle has been substantially impaired on account of the aforesaid defects. The probability of the vehicle in question being involved in some accident as stated in the written reply has not been proved as a fact and it only remains in the realm of probability.
25. We are also of the considered opinion that it was not necessary for the respondent/complainant to file affidavit of his daughter as the daughter informed her father i.e., complainant about the harassment caused to her by the said defects in the two-wheeler in question.
26. Resultantly, we find that the District Forum rightly allowed the complaint. There is no merit in the appeal, which deserves to be dismissed with costs, which we quantify at Rs. 500/-.
Copies of this order be sent to the parties free of charge.