Bajaj Auto Limited & Another              ---    Appellants
Vs.
Sri A. Nageswar Rao & Another           ---    Respondents

PRESENT:

Mr. Justice D.M. Patnaik, President, Dr. Arati Mohanty, Member & Mr. Pramodnath Das, Member

Mr. Pramodnath Das, Member : This is an appeal by the dealer against the judgment dated 16.2.98 of the Dist. Consumer Forum, Jeypore in complaint Case No. 19/95.

              The facts of the case stated in brief are that the complainant had purchased a Bajaj Scooter bearing Regd. No. OR-10-5845 on 23.8.93 for Rs. 21,165/- from OP No. 3, the dealer, the manufacturer being OP No. 1.

           According to the learned counsel of the complainant/respondent Mr. K.N.Jena, immediately after purchase, the vehicle developed problems beyond repair like less mileage, excessive heating and defective speedometer, etc.

            As such, complainant approached the concerned dealer and also reiterated his complaint in his various letters and also by personal approach to rectify the inherent defects permanently, but in vain. Despite repairs, the vehicle continued to give the same trouble and was required to be activated again and again. Defects persisted and it was not cured. According to Mr. Jena several complaints were made but the OP failed to rectify the fault. The complainant being disappointed on account of poor response from the OP ultimately instituted the complaint case. The complaint was supported by a detailed affidavit relating to allegations.

         It was prayed that OP be directed to replace the defective Scooter and award of Rs. 5,000/- as damage and compensation, etc. for alleged deficiency in service.

           The learned counsel Mr. S.Sarangi on behalf of the appellant M/s Bajaj Auto Limited and others have submitted written notes of arguments to the following effect.

1. That the learned District Forum should not have accepted the report of Sri C.Satyanarayan Rao, a surveyor of LIC, Visakhapatnam.

2. That the Dist. Forum should have directed a fresh checking of mileage.

3. That the vehicle was purchased in the year 1993 and the alleged test was done almost five years after.

4. That the direction to replace the vehicle is unjustified and uncalled for.

             The learned Dist. Forum after persuing the records and hearing counsel for the parties ordered that appellants are jointly and severally liable and thus directed to take back the Scooter from the complainant/respondent and return the sale price along with Rs. 5,000/- as compensation to the complainant/respondent within 3 months from the receipt of the said order.

             We have heard the learned counsel for both the parties at length and have carefully gone through the documents/materials on record along with the notes of argument, etc.

             There is absolutely no doubt in our mind that the complainant is a consumer and fulfills all the conditions of a consumer. Since this is a sale out and out with warranty and there is a contract for effecting repairs, etc., the complainant/respondent being a party to the contract is a consumer entitled to claim relief against the appellant as well. If the complainant was deprived of the use of the vehicle from the date of purchase, he was definitely put to harassment and inconvenience. On going through the various letters of the complainant/respondent dated 3.9.94, 15.11.94, 24.1.95 and copy of the job cards placed in the record, we have no hesitation to hold that the vehicle had an inherent manufacturing defect for which it was to be totally replaced or the complainant is to be paid back the price he paid for the vehicle for which relief he has prayed for. Our attention is drawn to the Hon'ble National Commission's decision in Amtrex, Ambience Vs. M/s Alpha Radio & Others. It was argued that where the manufactures/Authorised dealer failed to rectify the defects during warranty period, the same amounts to deficiency in service. Question is whether there is deficiency in service and we answer it in the affirmative, reason being as follows:

            Admittedly the vehicle was purchased on 23.8.93 and the period of warranty was for 18 months. Therefore it was legitimate for the complainant to insist for a thorough repair of the vehicle free from any defect.

           Mr. S.Sarangi the learned counsel on behalf of the appellant strenuously urged that it was because of poor maintenance and for frequent driving in Ghat Roads beyond the permissible speed limit the vehicle developed defects such as, gave less mileage for which the appellant is not to blame. Mr. Sarangi also reiterated that the Surveyor Mr. C.Satyanarayan Rao is not professionally and technically sound though he might be a regular surveyor of LIC of India. His report cannot be taken for granted.

             We are unable to accept these contentions of Mr. Sarangi because no genuine reason has been given as to why defects were not rectified during the warranty period. If M/s Bajaj Auto Ltd. does not rely on the report of the Surveyor Mr. C.S.Rao, on appeal, this commission felt it necessary to have a report from another technical expert to ascertain whether the Scooter suffered from any manufacturing defects, and if so, the nature and extent of these defects. Automobile Research Association of India (ARAI), Pune, which is situated at close proximity of the manufacturers should have been requested to depute an expert to inspect the vehicle. But it was not done, but OPs prolonged the matter quite unnecessarily. Further, the lack of technical knowledge on automobiles engineering of Sri C.Satyanarayan Rao is also not proved. The learned counsel for the appellant Mr. Sarangi has not been able to challenge the plea of the complainant that the Scooter was giving low mileage per one litre of fuel and we hold that was due to inherent manufacturing defect as held by the District Forum. Preponderance of probability is in favour of the consumer respondent as regards defects alleged. The finding of the District Forum is confirmed.

             As per the Section 14(1)(b) of the CP Act, 1986, when the nature of the defect is as found above, we hold and order that the relief to which the complainant would be entitled to is, to have the Scooter replaced with a new defect-free Scooter of the same brand with a fresh warranty failing which the complainant respondent would be entitled to get back the purchase price after adjusting any dues from the complainant within a period of two months from the date of issue of the order. The complainant/respondent is directed to deliver back the old Scooter to the OP on receiving the payment. In all fairness, no compensation and interest are allowed by us as the complainant/respondent is using the said vehicle till now. We are also not inclined to deal with on the subject of MRP and excise duty as alleged by the learned counsel Mr. Jena on behalf of the respondent because the same does not come under the ambit of the CP Act. However, a sum of Rs. 1,000/- is allowed towards the cost of litigation. With these modifications, we dismiss the appeal. The order of the learned District Forum does not call for any interference.

             Appeal disposed off.