| SooperKanoon Citation | sooperkanoon.com/1145207 |
| Court | National Consumer Disputes Redressal Commission NCDRC |
| Decided On | Jun-12-2014 |
| Case Number | Revision Petition No. 3998 of 2011 |
| Judge | V.B. GUPTA, PRESIDING MEMBER & THE HONOURABLE MRS. REKHA GUPTA, MEMBER |
| Appellant | M. Premalatha |
| Respondent | Arivalagan Proprietor and Others |
Excerpt:
consumer protection act, 1986 - section 21 (b) -rekha gupta, member revision petition no. 3998 of 2011 has been filed under section 21 (b) of the consumer protection act, 1986 against the order dated 31.01.2011 passed by the tamil nadu state consumer disputes redressal commission, chennai in appeal no. 646 of 2007. 2. the brief facts of the complaint as per the petitioner/ complainant are that the petitioner/ complainant is the wife of k s manickam, who has retired from his service. since the petitioners husband has also retired, the petitioner and husband wanted to start a motor business, wherefrom they eke their life in the remaining period. the petitioner tried to purchase a tempo van and from out of its income they proposed to eke their life. the petitioner searched various makes of tempo. since the petitioner made enquiry with the 2nd respondent/ 2nd opposite party, the 2nd respondent advised the petitioner that eicher vehicle 11.10.g hsd super long rhd 1c gb (turbo inter cooler) was the best vehicle and also advised that with the recommended laden condition the vehicle will give the mileage of 8 to 9 k m per litre. on hearing this petitioner purchased the vehicle eicher 11.10 turbo inter cooler bearing engine no. e 483t30690168 and chasis no. 20gc30602742 bearing registration no. ka 05 ac 7277 on 27.08.2003. 3. the petitioner plied the vehicle and did periodical service with the 1st respondent/ 1st opposite party, who is the authorised service dealer of the 2nd respondent. the petitioner faced a problem that the mileage of her vehicle was only 5 k m per litre, the petitioner complaint repeatedly with the 1st respondent. they did not believe her. after two services the 1st respondent asked the petitioner to service the same with the 2nd respondent. hence, the petitioner took the vehicle to 2nd respondent for servicing the same and rectify the defects. the 2nd respondent had checked up the fuel rotary pump and affixed the same and asked the petitioner that the mileage will be improved. but the petitioner faced the same problem and on 31.01.2003 the petitioners vehicle broke down due to ceasing of engine, at thoppur. immediately the vehicle was sent to the 2nd respondent for rectification. the 2nd respondent did the recondition of the new engine and changed the fuel rotary pump. after four months the petitioner faced the same problem of poor mileage and poor pick up and always the engine turned switch off. the petitioner complained of the same to the 2nd respondent for which the 2nd respondent dragged the matter for four months saying that the spares have to come from chennai and after four months the 2nd respondent fixed the fuel pump of the petitioners vehicle itself on 13.05.2004. 4. but even afterwards the petitioner faced the same problem. when the petitioner sent a letter dated 28.06.2004 to the 3rd respondent/ 3rd opposite party by narrating the entire story, for which the 3rd respondent sent a service engineer and he took the vehicle to chennai on 30.06.2004. on 04.07.2004 the shree motors of chennai gave a report that they have carried out the necessary service and also rectified the observations. they stated in their report that the vehicle had poor mileage and poor pick up, while the vehicle was presented to them, it had only maximum pick up of 6 k m p h. they had adjusted the fip timing and present the vehicle to check the mileage with the laden condition of 6.5 to 7 ton load. even afterwards the vehicle had given mileage of 5.5 kmpl. 5. in the 1st week of august 2004, 2nd respondent had come to hosur for advertisement and for demonstration of the eicher vehicle. at that time the petitioner and her family members were agitated in front of their camp. the 2nd respondent asked the petitioner to get the vehicle to salem to rectify the problem. on 17.08.2004 the petitioner took the vehicle to 2nd respondent for service. the 2nd respondent had checked the fuel pump and asked the petitioner to ply the vehicle and even afterwards when the petitioner complained the same problem the 2nd respondent gave the gear box and asked the petitioner to change the same at hosur with the 1st respondent. the 1st respondent had changed the gear box. but the same did not belong to the vehicle eicher turbo it belonged to some other model. the gear box affixed by the 1st respondent given by the 2nd respondent did not belong to the petitioners vehicles model. 6. the petitioner continued to have the same problem of poor mileage and poor pick up. the petitioner did not expect such a defective manufacture by the 3rd respondent and did not expect such a poor lethargic and unresponsive service from the 1st and 2nd respondent. the petitioner purchased the same to get income from out of which to eke their life. but due to the defective product and the deficiency of service of the respondents, the complainant plied the vehicle only between her house and the workshop. she did not get any income from out of which even though the respondents have given the guarantee of 12 months for this vehicle. the 2nd respondent always dragged the petitioner from here and there. 7. it was, therefore, prayed that the district forum may be direct the respondent to:to replace the defective vehicle sold to the petitioner with an un-defective one;pay the loss of earning and the amount of instalments paid to the financiers to the tune of rs.2,00,000/- (rupees two lakh only);pay rs.2,00,000/- towards mental agony and physical strain suffered by the petitioner;award cost of the complaint and legal notice etc., andaward such other relief or relieves as this district forum may deem just to the circumstances of the dispute and thus render justice.8. in their written statement before the district consumer disputes redressal forum, dharmapuri at kirshnagiri (the district forum) filed by respondent no. 2 and adopted by respondent no.1 and 3, it was stated that petitioner have never complained about any drop in mileage. it is only petitioners husband who made a complaint that he was not satisfied about the mileage given by the vehicle. 9. as a matter of fact the vehicle was subjected to pre-delivery inspection-cum-service on 23.08.2003 at the workshop of the 2nd respondent at salem when it had already run a total kms of 1564, which was the distance covered from the factory at madhya pradesh to salem. the next service was done on 18.09.2003 at the workshop of the 1st the respondent at hosur when the vehicle had travelled a total kilometre of 5225 though the said service was done even by 5000 kms. the third service was done on 20.11.2003 when the vehicle had covered a total km of 17886. the fourth service was done on 02.12.2003 at the salem workshop of the 2nd respondent when the total km run was 20,286. the fuel rotary pump was duly checked up and refitted. the fuel rotary pump was sent for recalibration to mico authorised dealer at salem and after recalibration, the said mico dealer reported that the pump was in good condition and that it did not suffer from any defect whatsoever. subsequently eleven periodical services were done on various dates about which the petitioner knows very well. on 31.01.2004 the engine of the vehicle was affected badly because of the over running of the same by the driver of the petitioner as a result of which the engine accessories were changed free of cost and the engine was fully serviced at free of labour though it was not obligatory on the part any of the respondents to do it. 10. it was repeatedly advised by the respondents that the vehicle was not being properly handled and any complaint regarding the efficiency should only be due to the drivers fault and condition of the road and load. the petitioners husband was also totally convinced with what was explained to him and he had himself expressed satisfaction about the performance of the vehicle. on 17.08.2004 when the vehicle was subjected to a mileage test, it was demonstrated to the petitioners husband that while the average fuel consumption was 8.29 km per litre when the vehicle was in an unladen condition, the same wag 7.04 km per litre in laden condition with a weight of 10,420 kgs which includes the weight of the vehicle also. 11. subsequent to the issue of the notice dated 08.11.2004, the vehicle was dutifully serviced at sree motors at madras an authorised service dealer of the respondent no. 3. 12. it was true that the petitioner and her family members indulged in agitation in the first week of august 2004. it was nothing but an unlawful act. they came with a pack of rowdy elements and took law into their hands by surrounding the employees of the 2nd respondent and were making unnecessary threat and abusive statements. at last, not being able to bear with their atrocious activities, a customer of the respondents reprimanded all of them and in fact advised the employees of 2nd respondents to lodge a complaint with the police. but out of sympathy and good gesture, no complaint was preferred against them for the offences committed by them. 13. on 23.09.2004, the gear box of the vehicle was replaced in order to satisfy the petitioners husband though it was not required at all and existing gear box was in a good condition. it is not only false but also fraudulent on the part of the complainant to allege that the gearbox with which the earlier one was replaced was not the make of the 3rd respondent. there was no necessity for the respondents to either give or recommend any part manufactured by some other company. 14. on top of all the petitioner is not a consumer at all as per the definition of the consumer protection act since she has purchased the vehicle for commercial use. the complaint is not maintainable as per the consumer protection act. there is no question of any deficiency of service on the part of respondents 1 to 3. the respondents are at a loss to know as to what the petitioner means by œunfair trade practice?. the respondents have been practicing their trade in the most fair and ethical way and each one of them had got a reputation of their own. 15. the district forum vide its order dated 21.09.2007 while allowing the complaint held that: œadmittedly the first and the second opposite parties rendered service in repairing the vehicle. even then there is poor mileage and the said complaint admitted by the opposite parties was towards to the third opposite party and his reply is still awaited. the opposite parties taken a stand is that the driver of the complainant is at fault, is not the correct proposition that the opposite parties 1 and 2 had ventured to change the gear box and to change the fuel pump and other services. if the opposite party was blaming the driver, but on the contrary the opposite party had not employed a qualified driver and taken a test drive along with the laden weight and not proved the fuel efficiency of vehicle. as such the vehicle is fuel deficient as contended by the complainant merits acceptance. the second opposite party forwarded the complaint to the third opposite party - manufacturer. the third opposite till date not replied amounts was is deficiency of service. in the above circumstances the complainant has established that there is deficiency of service on the part of the opposite parties and we allow the complaint. in the result, the complaint is allowed. the third opposite party is directed to (i) to replace the defective vehicle and (ii) the opposite parties 1 to 3 individually or jointly to pay a sum of rs.50,000/- as compensation for mental agony and (3) to pay a sum of rs.5,000/- towards costs. the payment dues instalments, loss of income are uncorroborated no award passed. these awards 1 to 3 shall be paid within a period of six weeks from the date of receipt of this order. failure compliance entails interest at 9% per annum, thereafter till realisation?. 16. aggrieved by the order of the district forum, the respondent nos. 2 and 3 filed an appeal before the state commission. the state commission observed that: œthe district forum based upon ex. a1 to ex a 15, as well as ex b 1 to ex b 8 while assessing the case of the parties, felt that the first and second opposite parties rendered service in repairing the vehicle, however, despite that fact that, there was poor mileage, for which, the opposite parties should be held responsible, that in view of the frequent taking of the vehicle to the opposite parties, for repairing or service, that would prove, there was no fuel efficiency, thereby the complainant had established, the deficiency of service. in this view, allowing the complaint, a direction was issued against the third opposite party, to replace the defective vehicle, issuing further direction to all the opposite parties, individually and jointly to pay a sum of rs.50,000/- as compensation, in addition to pay a sum of rs.5,000/- which is challenged by second and third opposite parties alone in this appeal. the petitioner who was the first respondent chooses to remain ex parte. the state commission note that the first respondent, who is the complainant, though served, has not appeared before this commission to defend the judgment or oppose the appeal and therefore, this commission is constrained to dispose the case on merit, based upon the available materials. the state commission vide order dated 31.01.2011 allowed the appeal and set aside the order of the district forum. the state commission held that œthe complainant has not produced, either the manual of the vehicle, which may indicate, what was the fuel efficiency declared or has not produced any brochure or advertisement, wherein the opposite parties would have declared about the mileage, thereby attracting the purchasers or consumers. in that case, if the vehicle has not given the assured mileage, as per the brochure, issued by the third opposite party, then we would come to the aid of the purchaser, to replace the vehicle, not otherwise. it is the specific case of the opposite parties that they never promised that the vehicle would give 8 to 9 kms per liter. in the absence of any such assurance by the opposite parties or in the absence of any such advertisement by the opposite parties, for fuel deficiency, if any, ordering replacement of the vehicle is unjust, since the efficiency of the vehicle especially this kind of goods carrier, would depend upon not only the road condition, weight, mode or method of driving such as frequently changing the gear, suddenly giving acceleration etc., the complainant has also not filed any expert opinion indicating, what kind of mileage is expected, from this kind of vehicle. even assuming that reasonable mileage is expected as claimed by the complainant 8 to 9 kms per liter, some of the documents prove that the vehicle has given such mileage and therefore, ordering replacement of the vehicle is not proper. as seen from ex.b1, mileage check-up said to have been done by one kumaran auto works was 5 kms, when the vehicle had run 17,786 kms. as seen from ex.b2, the mileage was worked out as 6.1 kms., ex.b3 says at some point of time, mileage worked out 8.28 kms., and 7.41 kms per liter. further, as seen from ex.b8, wherein the complainant or her husband, signed fuel average was worked out at 7.04 kms, at the average speed of 55 to 60 kms. if further disclosed, when the vehicle was unladen condition, it had given 8.29 kms., satisfying, the customer also signed. therefore, it should be construed, based upon, unquestionable documents, in the absence of any other positive document on the side of the complainant, that there was reasonable mileage and when the opposite parties have not promised or assured any mileage, for the mileage deficiency or efficiency, ordering replacement of the vehicle in the absence of manufacturing defect, may not be legally sound, which was not properly considered by the district forum. this commission as well as the national commission, has repeatedly held that if a consumer purchased some machineries and some parts, if it was found as manufacturing defect, that part alone can be replaced and ordering replacement of the entire machinery will be prejudicial to the interest of manufacturer, that too, when a manufacturing defect is not made out. for the reasons recorded by us supra, when the opposite parties have not committed any deficiency or negligent act, and when the complainant has not proved manufacturing defect, the order of the district forum is erroneous, liable to be set aside. in the result, the appeal is allowed, the order of the district forum in op no.70/2004, dated 21.09.2007 is set aside, and the complaint is dismissed. considering the facts and circumstances of the case, there will be no order as to cost, throughout?. 17. hence, the present revision petition. 18. the main ground for the revision petition are as under: * without appreciating the facts and circumstances leading to the present case, the state commission allowed the first appeal filed by the respondent nos. 2 and 3 herein. further, the state commission observed that if certain part of the engine is defective, the consumer is entitled for replacement of that part alone, and not entitled to replacement of the entire vehicle. unless it is shown that the defective parts made the vehicle not only immobilize at present but also that would immobilize the vehicle in future. in the present case, the state commission has not appreciated the contention made by the petitioner that the gear box affixed by the respondent no. 1 herein (first opposite party therein) given by the respondent no. 2 herein (second opposite party) was not at all belonged to the complainants vehicle model and it belonged to some other model. * the state commission was not correct in allowing the first appeal observing that the vehicle was taken to the service providers for free service, frequently for replacement of certain spare parts alone will not take up or compel us to come to a conclusion that the vehicle was having manufacturing defect or other defects which cannot be rectified at all or narrating a replacement of the vehicle. the state commission allowed the first appeal without appreciating the contention made by the petitioner here. though it was belonged to same problem of poor mileage and poor pick up and the petitioner did not expect such a defective vehicle manufactured by respondent no. 3, herein (third opposite party) and did not expect such a poor lethargically irresponsive service from the 1st and 2nd opposite parties (respondent no. 1 and 2 herein). 19.along with the revision petition, the petitioner has filed an application for condonation of delay. vide order dated 13.01.2012 petitioner was directed to amend the application for condonation of delay as in the first application no period of delay had been mentioned. the application for condonation of delay states that there is a delay of one day in filing the present revision petition. on the other hand, as per the office report, there is a delay of 184 in filing the present petition. it was stated by the counsel for the petitioner that the certified copy of the impugned order was received by the petitioner on 09.09.2011. under these circumstances, registrar of the state commission tamil nadu was directed to send a report specifically stating as to on which date the certified copy of the order was dispatched to the petitioner and when the same was received by the petitioner. 20. the report dated 10.04.2013 has been received from the registrar, state commission tamil nadu which reads as under: œwith reference to the letter above cited, i am to state that the order in fa no. 646 of 2007 dated 31.01.2011 on the file of the state commission, chennai was made ready on 10.03.2011. the free copy of the order was received by the counsel for the appellant (jayalakshmi auto works and agencies (p) ltd., salem and eicher motors ltd. dhar) by hand on 14.03.2011 and since the counsel for respondent not turned up to receive the free copy of the order, the same was sent through courier to the respondent/ party (m premalatha, hosur) on 07.09.2011. in this connection, i am to state that the usual practice being followed by this commission in delivery of free copy of orders is that, whenever, the parties represented their cases through counsel, then the order copy will be delivered to the respective counsel by hand without sending the same through post directly to the parties. the particulars of the case for which, free copies are made ready will be displayed in the notice board and the concerned counsel will get the free copy by hand from office. the free copy will be sent to the address of the parties through post only when the case are represented by the concerned parties in person or when the counsel engaged by the parties not turned up to receive the order copy?. 21. we have heard the learned counsel for the petitioner and have also gone through the records of the case carefully. 22. as per the revised application, the reasons given for the delay are as follows: œhonble commission vide order dated 13.01.2012 directed the applicant to file the fresh application for condonation of delay explaining the reasons for delay. it is submitted that the state commission has passed the impugned order dated 31.01.2011 thereby allowed the first appeal being fa no. 646 of 2007 filed by the respondent nos. 2 and 3 herein and the certified copy of the said impugned order dispatched by the registry of the state commission was only on 07.09.2011 and received on 09.09.2011, a true and correct copy of the envelope containing the date dispatch is annexed. after that on 25.09.2011 the petitioner herein consulted the local lawyer to file an appeal before the national commission. on 10.10.2011 the petitioner herein has consulted and sent the papers to the lawyer at delhi for an opinion to file an appeal before this commission against the impugned order. on 30.10.2011 after obtaining the opinion, the petitioner has sent the necessary papers and vakalatanama to file a revision before this commission in delhi. on 20.11.2011 the counsel on record at delhi drafted the petition and same has been sent to the local lawyer for finalization. on 09.12.2011 the present revision petition was filed by the petitioner herein. hence, there is a delay of 1 day in filing the present revision petition before this commission which is neither intentional nor wanton but occurred due to the circumstances stated above?. 23. from the above it is seen that while it is true that the certified copy of the order may have been received by the petitioner on 07.09.2011, thereafter also, the petitioner took more than three months to file the revision petition. there is no specific reason given to explain the day to day delay from 07.09.2011 to 09.12.2011. it is also seen that having got the order in their favour in the district forum the petitioner chose not to appear before the state commission to defend the judgment or oppose the appeal. counsel for the petitioner could not also deny that the petitioner had knowledge of the filing the appeal due to the notice served to the petitioner. the counsel could not also deny that they were not aware of the practice being followed by the state commission that the free copy of the orders was handed to the counsel. it is quite apparent that neither the petitioner nor any one on his behalf made any enquiries regarding the progress of the appeal before the state commission. the petitioner has shown a very casual, lackadaisical and negligent approach in pursuing this case. the order in fa no. 646 of 2007 was ready on 10.03.2011 and could have been collected by the petitioner herself or by someone authorized by her. she cannot now take advantage of her lack of action to plead that limitation from 07.09.2011. 24. at the same time, it is also well settled that œsufficient cause? with regard to condonation of delay in each case, is a question of fact. 25. the apex court in anshulaggarwal v. new okhla industrial development authority, iv (2011) cpj 63 (sc), has laid down: œit is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the court has to keep in mind that the special period of limitation has been prescribed under the consumer protection act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras?. 26. in balwantsingh vs. jagdish singh and ors., (civil appeal no. 1166 of 2006), decided by the apex court on 08.07.2010 it was held: œthe party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. the test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [advanced law lexicon, p. ramanatha aiyar, 3rd edition, 2005]?. 27. inram lal and ors. vs. rewa coalfields ltd., air 1962 supreme court 361, it has been observed; œit is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. the proof of a sufficient cause is a discretionary jurisdiction vested in the court by s.5. if sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. if sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. this aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant.? 28. accordingly, we find that there is no sufficient cause to condone the delay of 184 days in filing the present revision petition. the applications for condonation of delay are without any merit as well as having no legal basis and is not maintainable. consequently, the present revision petition being time barred by limitation and is dismissed with cost of rs.5,000/- (rupees five thousand only). 29. petitioner is directed to deposit the cost by way of demand draft in the name of consumer legal aid account of this commission within four weeks from today. in case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. 30. list on 25th july, 2014 for compliance.
Judgment:Rekha Gupta, Member
Revision petition no. 3998 of 2011 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 31.01.2011 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in Appeal no. 646 of 2007.
2. The brief facts of the complaint as per the petitioner/ complainant are that the petitioner/ complainant is the wife of K S Manickam, who has retired from his service. Since the petitioners husband has also retired, the petitioner and husband wanted to start a motor business, wherefrom they eke their life in the remaining period. The petitioner tried to purchase a Tempo Van and from out of its income they proposed to eke their life. The petitioner searched various makes of Tempo. Since the petitioner made enquiry with the 2nd respondent/ 2nd opposite party, the 2nd respondent advised the petitioner that Eicher Vehicle 11.10.G HSD Super Long RHD 1C GB (Turbo inter cooler) was the best vehicle and also advised that with the recommended laden condition the vehicle will give the mileage of 8 to 9 k m per litre. On hearing this petitioner purchased the vehicle Eicher 11.10 Turbo Inter Cooler bearing Engine no. E 483T30690168 and Chasis no. 20GC30602742 bearing registration no. KA 05 AC 7277 on 27.08.2003.
3. The petitioner plied the vehicle and did periodical service with the 1st respondent/ 1st opposite party, who is the authorised service dealer of the 2nd respondent. The petitioner faced a problem that the mileage of her vehicle was only 5 k m per litre, the petitioner complaint repeatedly with the 1st respondent. They did not believe her. After two services the 1st respondent asked the petitioner to service the same with the 2nd respondent. Hence, the petitioner took the vehicle to 2nd respondent for servicing the same and rectify the defects. The 2nd respondent had checked up the Fuel Rotary Pump and affixed the same and asked the petitioner that the mileage will be improved. But the petitioner faced the same problem and on 31.01.2003 the petitioners vehicle broke down due to ceasing of engine, at Thoppur. Immediately the vehicle was sent to the 2nd respondent for rectification. The 2nd respondent did the recondition of the new engine and changed the Fuel Rotary Pump. After four months the petitioner faced the same problem of poor mileage and poor pick up and always the engine turned switch off. The petitioner complained of the same to the 2nd respondent for which the 2nd respondent dragged the matter for four months saying that the spares have to come from Chennai and after four months the 2nd respondent fixed the fuel pump of the petitioners vehicle itself on 13.05.2004.
4. But even afterwards the petitioner faced the same problem. When the petitioner sent a letter dated 28.06.2004 to the 3rd respondent/ 3rd opposite party by narrating the entire story, for which the 3rd respondent sent a service engineer and he took the vehicle to Chennai on 30.06.2004. On 04.07.2004 the Shree Motors of Chennai gave a report that they have carried out the necessary service and also rectified the observations. They stated in their report that the vehicle had poor mileage and poor pick up, while the vehicle was presented to them, it had only maximum pick up of 6 k m p h. They had adjusted the FIP timing and present the vehicle to check the mileage with the laden condition of 6.5 to 7 ton load. Even afterwards the vehicle had given mileage of 5.5 kmpl.
5. In the 1st week of August 2004, 2nd respondent had come to Hosur for advertisement and for demonstration of the Eicher Vehicle. At that time the petitioner and her family members were agitated in front of their camp. The 2nd respondent asked the petitioner to get the vehicle to Salem to rectify the problem. On 17.08.2004 the petitioner took the vehicle to 2nd respondent for service. The 2nd respondent had checked the fuel pump and asked the petitioner to ply the vehicle and even afterwards when the petitioner complained the same problem the 2nd respondent gave the gear box and asked the petitioner to change the same at Hosur with the 1st respondent. The 1st respondent had changed the gear box. But the same did not belong to the vehicle Eicher Turbo it belonged to some other model. The gear box affixed by the 1st respondent given by the 2nd respondent did not belong to the petitioners vehicles model.
6. The petitioner continued to have the same problem of poor mileage and poor pick up. The petitioner did not expect such a defective manufacture by the 3rd respondent and did not expect such a poor lethargic and unresponsive service from the 1st and 2nd respondent. The petitioner purchased the same to get income from out of which to eke their life. But due to the defective product and the deficiency of service of the respondents, the complainant plied the vehicle only between her house and the workshop. She did not get any income from out of which even though the respondents have given the guarantee of 12 months for this vehicle. The 2nd respondent always dragged the petitioner from here and there.
7. It was, therefore, prayed that the District Forum may be direct the respondent to:
- To replace the defective vehicle sold to the petitioner with an un-defective one;
- Pay the loss of earning and the amount of instalments paid to the financiers to the tune of Rs.2,00,000/- (Rupees two lakh only);
- Pay Rs.2,00,000/- towards mental agony and physical strain suffered by the petitioner;
- Award cost of the complaint and legal notice etc., and
- Award such other relief or relieves as this District Forum may deem just to the circumstances of the dispute and thus render justice.
8. In their written statement before the District Consumer Disputes Redressal Forum, Dharmapuri at Kirshnagiri (the District Forum) filed by respondent no. 2 and adopted by respondent no.1 and 3, it was stated that petitioner have never complained about any drop in mileage. It is only petitioners husband who made a complaint that he was not satisfied about the mileage given by the vehicle.
9. As a matter of fact the vehicle was subjected to pre-delivery inspection-cum-service on 23.08.2003 at the workshop of the 2nd respondent at Salem when it had already run a total kms of 1564, which was the distance covered from the factory at Madhya Pradesh to Salem. The next service was done on 18.09.2003 at the workshop of the 1st the respondent at Hosur when the vehicle had travelled a total kilometre of 5225 though the said service was done even by 5000 kms. The third service was done on 20.11.2003 when the vehicle had covered a total km of 17886. The fourth service was done on 02.12.2003 at the Salem workshop of the 2nd respondent when the total km run was 20,286. The fuel rotary pump was duly checked up and refitted. The fuel rotary pump was sent for recalibration to Mico authorised dealer at Salem and after recalibration, the said Mico dealer reported that the pump was in good condition and that it did not suffer from any defect whatsoever. Subsequently eleven periodical services were done on various dates about which the petitioner knows very well. On 31.01.2004 the engine of the vehicle was affected badly because of the over running of the same by the driver of the petitioner as a result of which the engine accessories were changed free of cost and the engine was fully serviced at free of labour though it was not obligatory on the part any of the respondents to do it.
10. It was repeatedly advised by the respondents that the vehicle was not being properly handled and any complaint regarding the efficiency should only be due to the drivers fault and condition of the road and load. The petitioners husband was also totally convinced with what was explained to him and he had himself expressed satisfaction about the performance of the vehicle. On 17.08.2004 when the vehicle was subjected to a mileage test, it was demonstrated to the petitioners husband that while the average fuel consumption was 8.29 km per litre when the vehicle was in an unladen condition, the same wag 7.04 km per litre in laden condition with a weight of 10,420 kgs which includes the weight of the vehicle also.
11. Subsequent to the issue of the notice dated 08.11.2004, the vehicle was dutifully serviced at Sree Motors at Madras an authorised service dealer of the respondent no. 3.
12. It was true that the petitioner and her family members indulged in agitation in the first week of August 2004. It was nothing but an unlawful act. They came with a pack of rowdy elements and took law into their hands by surrounding the employees of the 2nd respondent and were making unnecessary threat and abusive statements. At last, not being able to bear with their atrocious activities, a customer of the respondents reprimanded all of them and in fact advised the employees of 2nd respondents to lodge a complaint with the police. But out of sympathy and good gesture, no complaint was preferred against them for the offences committed by them.
13. On 23.09.2004, the gear box of the vehicle was replaced in order to satisfy the petitioners husband though it was not required at all and existing gear box was in a good condition. It is not only false but also fraudulent on the part of the complainant to allege that the gearbox with which the earlier one was replaced was not the make of the 3rd respondent. There was no necessity for the respondents to either give or recommend any part manufactured by some other company.
14. On top of all the petitioner is not a consumer at all as per the definition of the Consumer Protection Act since she has purchased the vehicle for commercial use. The complaint is not maintainable as per the Consumer Protection Act. There is no question of any deficiency of service on the part of respondents 1 to 3. The respondents are at a loss to know as to what the petitioner means by œunfair trade practice?. The respondents have been practicing their trade in the most fair and ethical way and each one of them had got a reputation of their own.
15. The District Forum vide its order dated 21.09.2007 while allowing the complaint held that:
œadmittedly the first and the second opposite parties rendered service in repairing the vehicle. Even then there is poor mileage and the said complaint admitted by the opposite parties was towards to the third opposite party and his reply is still awaited. The opposite parties taken a stand is that the driver of the complainant is at fault, is not the correct proposition that the opposite parties 1 and 2 had ventured to change the gear box and to change the fuel pump and other services. If the opposite party was blaming the driver, but on the contrary the opposite party had not employed a qualified driver and taken a test drive along with the laden weight and not proved the fuel efficiency of vehicle. As such the vehicle is fuel deficient as contended by the complainant merits acceptance. The second opposite party forwarded the complaint to the third opposite party - manufacturer. The third opposite till date not replied amounts was is deficiency of service. In the above circumstances the complainant has established that there is deficiency of service on the part of the opposite parties and we allow the complaint.
In the result, the complaint is allowed. The third opposite party is directed to (i) to replace the defective vehicle and (ii) the opposite parties 1 to 3 individually or jointly to pay a sum of Rs.50,000/- as compensation for mental agony and (3) to pay a sum of Rs.5,000/- towards costs. The payment dues instalments, loss of income are uncorroborated no award passed. These awards 1 to 3 shall be paid within a period of six weeks from the date of receipt of this order. Failure compliance entails interest at 9% per annum, thereafter till realisation?.
16. Aggrieved by the order of the District Forum, the respondent nos. 2 and 3 filed an appeal before the State Commission. The State Commission observed that:
œthe District Forum based upon Ex. A1 to Ex A 15, as well as Ex B 1 to Ex B 8 while assessing the case of the parties, felt that the first and second opposite parties rendered service in repairing the vehicle, however, despite that fact that, there was poor mileage, for which, the opposite parties should be held responsible, that in view of the frequent taking of the vehicle to the opposite parties, for repairing or service, that would prove, there was no fuel efficiency, thereby the complainant had established, the deficiency of service. In this view, allowing the complaint, a direction was issued against the third opposite party, to replace the defective vehicle, issuing further direction to all the opposite parties, individually and jointly to pay a sum of Rs.50,000/- as compensation, in addition to pay a sum of Rs.5,000/- which is challenged by second and third opposite parties alone in this appeal.
The petitioner who was the first respondent chooses to remain ex parte. The State Commission note that the first respondent, who is the complainant, though served, has not appeared before this Commission to defend the judgment or oppose the appeal and therefore, this Commission is constrained to dispose the case on merit, based upon the available materials.
The State Commission vide order dated 31.01.2011 allowed the appeal and set aside the order of the District Forum. The State Commission held that œthe complainant has not produced, either the manual of the vehicle, which may indicate, what was the fuel efficiency declared or has not produced any brochure or advertisement, wherein the opposite parties would have declared about the mileage, thereby attracting the purchasers or consumers. In that case, if the vehicle has not given the assured mileage, as per the Brochure, issued by the third opposite party, then we would come to the aid of the purchaser, to replace the vehicle, not otherwise. It is the specific case of the opposite parties that they never promised that the vehicle would give 8 to 9 kms per liter. In the absence of any such assurance by the opposite parties or in the absence of any such advertisement by the opposite parties, for fuel deficiency, if any, ordering replacement of the vehicle is unjust, since the efficiency of the vehicle especially this kind of goods carrier, would depend upon not only the road condition, weight, mode or method of driving such as frequently changing the gear, suddenly giving acceleration etc., The complainant has also not filed any expert opinion indicating, what kind of mileage is expected, from this kind of vehicle. Even assuming that reasonable mileage is expected as claimed by the complainant 8 to 9 kms per liter, some of the documents prove that the vehicle has given such mileage and therefore, ordering replacement of the vehicle is not proper. As seen from Ex.B1, mileage check-up said to have been done by one Kumaran Auto Works was 5 kms, when the vehicle had run 17,786 kms. As seen from Ex.B2, the mileage was worked out as 6.1 kms., Ex.B3 says at some point of time, mileage worked out 8.28 kms., and 7.41 kms per liter. Further, as seen from Ex.B8, wherein the complainant or her husband, signed fuel average was worked out at 7.04 kms, at the average speed of 55 to 60 kms. If further disclosed, when the vehicle was unladen condition, it had given 8.29 kms., satisfying, the customer also signed. Therefore, it should be construed, based upon, unquestionable documents, in the absence of any other positive document on the side of the complainant, that there was reasonable mileage and when the opposite parties have not promised or assured any mileage, for the mileage deficiency or efficiency, ordering replacement of the vehicle in the absence of manufacturing defect, may not be legally sound, which was not properly considered by the District Forum. This Commission as well as the National Commission, has repeatedly held that if a consumer purchased some machineries and some parts, if it was found as manufacturing defect, that part alone can be replaced and ordering replacement of the entire machinery will be prejudicial to the interest of manufacturer, that too, when a manufacturing defect is not made out. For the reasons recorded by us supra, when the opposite parties have not committed any deficiency or negligent act, and when the complainant has not proved manufacturing defect, the order of the District Forum is erroneous, liable to be set aside.
In the result, the appeal is allowed, the order of the District Forum in OP No.70/2004, dated 21.09.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout?.
17. Hence, the present revision petition.
18. The main ground for the revision petition are as under:
* Without appreciating the facts and circumstances leading to the present case, the State Commission allowed the first appeal filed by the respondent nos. 2 and 3 herein. Further, the State Commission observed that if certain part of the engine is defective, the consumer is entitled for replacement of that part alone, and not entitled to replacement of the entire vehicle. Unless it is shown that the defective parts made the vehicle not only immobilize at present but also that would immobilize the vehicle in future. In the present case, the State Commission has not appreciated the contention made by the petitioner that the gear box affixed by the respondent no. 1 herein (First opposite party therein) given by the respondent no. 2 herein (second opposite party) was not at all belonged to the complainants vehicle model and it belonged to some other model.
* The State Commission was not correct in allowing the first appeal observing that the vehicle was taken to the service providers for free service, frequently for replacement of certain spare parts alone will not take up or compel us to come to a conclusion that the vehicle was having manufacturing defect or other defects which cannot be rectified at all or narrating a replacement of the vehicle. The State Commission allowed the first appeal without appreciating the contention made by the petitioner here. Though it was belonged to same problem of poor mileage and poor pick up and the petitioner did not expect such a defective vehicle manufactured by respondent no. 3, herein (third opposite party) and did not expect such a poor lethargically irresponsive service from the 1st and 2nd opposite parties (respondent no. 1 and 2 herein).
19.Along with the revision petition, the petitioner has filed an application for condonation of delay. Vide order dated 13.01.2012 petitioner was directed to amend the application for condonation of delay as in the first application no period of delay had been mentioned. The application for condonation of delay states that there is a delay of one day in filing the present revision petition. On the other hand, as per the office report, there is a delay of 184 in filing the present petition. It was stated by the counsel for the petitioner that the certified copy of the impugned order was received by the petitioner on 09.09.2011. Under these circumstances, Registrar of the State Commission Tamil Nadu was directed to send a report specifically stating as to on which date the certified copy of the order was dispatched to the petitioner and when the same was received by the petitioner.
20. The report dated 10.04.2013 has been received from the Registrar, State Commission Tamil Nadu which reads as under:
œWith reference to the letter above cited, I am to state that the order in FA no. 646 of 2007 dated 31.01.2011 on the file of the State Commission, Chennai was made ready on 10.03.2011. The free copy of the order was received by the Counsel for the appellant (Jayalakshmi Auto Works and Agencies (P) Ltd., Salem and Eicher Motors Ltd. Dhar) by hand on 14.03.2011 and since the counsel for respondent not turned up to receive the free copy of the order, the same was sent through courier to the respondent/ party (M Premalatha, Hosur) on 07.09.2011.
In this connection, I am to state that the usual practice being followed by this Commission in delivery of free copy of orders is that, whenever, the parties represented their cases through Counsel, then the order copy will be delivered to the respective counsel by hand without sending the same through post directly to the parties. The particulars of the case for which, free copies are made ready will be displayed in the Notice Board and the concerned counsel will get the free copy by hand from office. The free copy will be sent to the address of the parties through post only when the case are represented by the concerned parties in person or when the counsel engaged by the parties not turned up to receive the order copy?.
21. We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.
22. As per the revised application, the reasons given for the delay are as follows:
œHonble Commission vide order dated 13.01.2012 directed the applicant to file the fresh application for condonation of delay explaining the reasons for delay. It is submitted that the State Commission has passed the impugned order dated 31.01.2011 thereby allowed the first appeal being FA no. 646 of 2007 filed by the respondent nos. 2 and 3 herein and the certified copy of the said impugned order dispatched by the Registry of the State Commission was only on 07.09.2011 and received on 09.09.2011, a true and correct copy of the envelope containing the date dispatch is annexed. After that on 25.09.2011 the petitioner herein consulted the local lawyer to file an appeal before the National Commission. On 10.10.2011 the petitioner herein has consulted and sent the papers to the lawyer at Delhi for an opinion to file an appeal before this Commission against the impugned order. On 30.10.2011 after obtaining the opinion, the petitioner has sent the necessary papers and vakalatanama to file a revision before this Commission in Delhi. On 20.11.2011 the counsel on record at Delhi drafted the petition and same has been sent to the local lawyer for finalization. On 09.12.2011 the present revision petition was filed by the petitioner herein. Hence, there is a delay of 1 day in filing the present revision petition before this Commission which is neither intentional nor wanton but occurred due to the circumstances stated above?.
23. From the above it is seen that while it is true that the certified copy of the order may have been received by the petitioner on 07.09.2011, thereafter also, the petitioner took more than three months to file the revision petition. There is no specific reason given to explain the day to day delay from 07.09.2011 to 09.12.2011. It is also seen that having got the order in their favour in the District Forum the petitioner chose not to appear before the State Commission to defend the judgment or oppose the appeal. Counsel for the petitioner could not also deny that the petitioner had knowledge of the filing the appeal due to the notice served to the petitioner. The Counsel could not also deny that they were not aware of the practice being followed by the State Commission that the free copy of the orders was handed to the counsel. It is quite apparent that neither the petitioner nor any one on his behalf made any enquiries regarding the progress of the appeal before the State Commission. The petitioner has shown a very casual, lackadaisical and negligent approach in pursuing this case. The order in FA no. 646 of 2007 was ready on 10.03.2011 and could have been collected by the petitioner herself or by someone authorized by her. She cannot now take advantage of her lack of action to plead that limitation from 07.09.2011.
24. At the same time, it is also well settled that œsufficient cause? with regard to condonation of delay in each case, is a question of fact.
25. The Apex Court In AnshulAggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down:
œIt is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras?.
26. In BalwantSingh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: œThe party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]?.
27. InRam Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
œIt is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.?
28. Accordingly, we find that there is no sufficient cause to condone the delay of 184 days in filing the present revision petition. The applications for condonation of delay are without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).
29. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
30. List on 25th July, 2014 for compliance.