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Brij Mohan Sharma v/s Vikas Automobiles & Another

    Revision Petition No. 2235 of 2015

    Decided On, 15 December 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER

    For the Appearing Parties: Ritesh Khare, Inderdeep Singh, Advocates.



Judgment Text

The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (substituted now) (for short "the Act") has been filed by the Petitioner (hereinafter be referred as "the Complainant") for setting aside of the order dated 06.07.2015 of the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh (for short "the State Commission") in Appeal No.2644 of 2001 filed by the Respondent No.1, M/s Vikas Automobiles, by which the order dated 10.04.2001 of the District Consumer Disputes Redressal Forum, Bulandshahar (for short "the District Forum") allowing the Complaint No.609 of 1997 of the Complainant was set aside.

2. The brief facts of the case are that the Complainant had purchased a vehicle from Respondent No.1, Vikas Automobiles on 07.06.1996. The vehicle was manufactured by the Respondent No.2, M/s Shanti Auto Private Limited. It is an admitted fact that the vehicle was brought to Respondent No.1 who is also a sub agent, as the vehicle developed certain defects. Respondent No.1 could not repair the vehicle and sent the vehicle for repair to Delhi to M/s Saraswati Auto. After the repair of the vehicle, it was returned to the Complainant on 07.10.1996.

3. The contention of the Complainant in the Complaint was that the vehicle had inherent defects. It is submitted that the vehicle was six seater but the engine installed in the vehicle was of three seater due to which it was unable to take the load and so, he was finding it difficult in using the vehicle. Another contention of the Complainant is that although, the vehicle was under warranty of six months, in September 1996 when it was handed over to the Respondent No.1 for repair, the Respondent No.1 had charged him the expenses incurred on the repair work. He had also contended that even after the repair of the vehicle on 07.10.1996, the vehicle did not work properly and again on 29.12.1996, the defects developed in the engine and after getting 82 M.M. cylinder piston bore, the vehicle was handed over to him. He further contended that he gave notice to the defendants on 27.01.1997 and the defendant no.2 changed the engine in June 1997 but still the vehicle did not work properly because the vehicle was having three seater engine. It developed defects now and then. He had further contended that the vehicle remained out of service since the beginning and it being his only source of income, he had spent Rs.50,000/- in getting the vehicle repaired. He has also stated that on 10.02.1997, he was called for settlement by the Respondent No.1 and was forcibly made to write on some papers and to keep the vehicle outside the showroom. He, thereafter, lodged a Complaint with SSP Bulandshahar but his grievances were not redressed.

4. In the reply, the Respondent No.1 had stated that they had not charged any money from the Complainant for getting his vehicle repaired at Delhi for the period between September 1996 to 07.10.1996. They had denied that they had ever called the Complainant in their office as alleged and made him sign any paper. They had also denied having received any notice from the Complainant. They had also contended that the defects in the vehicle had developed only due to excess load and loading of extra passengers by the Complainant and it was due to his own negligence.

5. The Complainant has examined himself as witness by way of affidavit before the District Forum. The Respondents No.1 and 2, however, did not lead any evidence before the District Forum. The Respondent no.1 was also proceeded ex parte and the ex parte order dated 10.04.2001 had been passed whereby the Complaint was allowed and the following directions were issued:

"Complaint of the complainant is allowed and it is directed to the defendants to give new six seater auto to the complainant in place of the auto sold to the complainant within 45 days from the date of judgment and against the expenses incurred by the complainant for getting repaired above-said auto, payment of Rs.30,000/- and regarding mental agony caused to the complainant, payment of Rs.5000/- be made to the complainant, otherwise, the defendants shall be responsible for making payment at the rate of fifteen percent per annum interest on the above-mentioned amount since after the specified period up to the date of payment."

6. Aggrieved by this order, the Respondent No.1 filed the Appeal before the State Commission. It is clear that although, the Respondent No.1 was ex parte and did not lead any evidence before the District Forum, the Respondent No.1 did not seek permission from the State Commission to lead evidence in support of their contentions, although they had the opportunity and permissibility under the law. The fact, therefore, remains that while the Complainant has led his evidence by way of affidavit, there is no evidence led by the Respondent No.1. The State Commission had set aside the order of the District Forum stating that the Complainant had not produced any evidence to prove his allegations to the effect that the engine of the vehicle was defective and that for the repair got done by the Respondent No.1 during the period September 1996 to 07.10.1996, it is the Complainant who had borne the expenses. It is argued on behalf of the Complainant that the findings of the State Commission are perverse because despite the fact that there was uncontradicted testimony of the Complainant on record, the State Commission has dismissed his Complaint. It is submitted that the said order needs to be set aside and the order of the District Forum be restored.

7. It is argued on behalf of the Respondent No.1 that the findings of the State Commission are based on the evidences on record. The State Commission has rightly rejected the oral testimony of the Complainant as the Complainant had not produced any documents on record to prove that he had incurred the expenses for repair done during the period between September 1996 to October 1996. It is further argued that no expert has been examined by the Complainant to prove that the engine installed in the vehicle was incapable of running the six seater vehicle and therefore, the State Commission has rightly concluded that no evidence had been led by the Complainant to prove manufacturing/inherent defect in the vehicle. It is argued that after the vehicle was repaired and handed over to the Complainant on 07.10.1996, he was running the said vehicle and he had not produced any evidence to show that thereafter, the vehicle had ever developed any defect and that he had got it repaired either from the Respondent No.1 or from any other agency. It is argued that the burden was solely upon the Complainant which he had failed to discharge and therefore, the impugned order is not perverse and does not suffer with any illegality.

8. I have given thoughtful consideration to the rival contentions of the parties and have perused the file. The vehicle was purchased by the Complainant on 07.06.1996 and within the warranty period, it developed defects. These are the admitted facts that the vehicle was brought to the Respondent No.1 for repair. Respondent No.1 is the sub agent of the Respondent No.2, the manufacturer. The fact is that the defects developed in the vehicle were of such nature which the Respondent No.1 could not remove and the vehicle was sent to Delhi for repairs. The vehicle remained in Delhi from September 1996 to October 1996 and this shows that the massive repair work had been done on the vehicle. Although, learned Counsel for the Respondent No.1 has contended that the defects for which the vehicle was brought only relate to excessive consumption of the engine oil, yet no evidence to this effect has been produced by the Respondent No.1, although they had ample opportunities to do so. Not even an affidavit to contradict the contention and the submission of the Complainant that the engine of the vehicle which developed the defect related to the excessive consumption of engine oil, has been filed. There is no contradictory evidence on record and the circumstances also prove that within three months of the purchase of the vehicle, a defect in the engine had been developed. There is no evidence as to the nature of defects but the circumstances clearly show that there was an inherent defect in the engine, that is the reason that it took many days for the repair of the vehicle. The argument that it was not the inherent defect but a defect which had developed due to overloading of the vehicle of goods and the passengers does not find support from any evidence on record. The finding of the State Commission to the effect that the defects which developed due to overloading is therefore perverse as it is based on no evidence but simply a surmise.

9. It is also a fact that the Complainant has not produced any expert to prove his contention that the engine put in the vehicle by the manufacturer was not suitable for the six seater vehicle which he had purchased and therefore, it is a manufacturing defect. In view of the fact that no such evidence has been led by the Complainant to prove this manufacturing defect, I am of the opinion that he had totally failed to prove that there was any manufacturing defect in the vehicle which he contends.

10. The argument of learned Counsel for the Respondent No.1 is that there is no deficiency in service on their part because they got the vehicle repaired as soon as the defects were reported to them and that they had not charged even a single penny for that because the vehicle was within the warranty period.

11. The Complainant contended that even after the repair in the engine of the vehicle, the vehicle was not running properly. The vehicle developed defect in the engine on 29.12.1996 and 82 MM piston bore was to be done in the vehicle. Again the vehicle developed problem in June 1997 and thereafter also, the vehicle developed defects on and off and the defects in the engine could not be removed. Learned Counsel for the Respondent No.1 argues that there is no evidence on record in support of this contention of the Complainant. The Complainant has filed his affidavit of evidence wherein he has stated on oath all these facts. During the course of arguments, learned Counsel for the Respondent No.1 has admitted that in Bulandhahar where the vehicle was purchased and where the Respondent No.1 is running their business, there is no authorised dealer of Respondent No.2, the manufacturer. Since there is no authorised dealer designated by the manufacturer, the buyer had the option to get the vehicle repaired from any place. In the warranty, the name of the agent is also not mentioned. There is nothing in the sale letter etc. restricting the buyer from getting the vehicle repaired from any particular place. The Respondent had not taken any stand in their written statement that there are various authorised service stations for the repair of the vehicle in Bulandshahar and that the vehicle was not repaired from those authorised service stations. It is a settled proposition of law that the proceedings before a consumer forum are of the nature of summary trial where strict principles of burden of proof and production of evidences are not applicable. Preponderance of evidences in support of a fact is the principle. Also the attending circumstances of the case proved on record and uncontradicted testimony of the Complainant in the light of these circumstances can be considered sufficient material to reach to a conclusion in a summary trial case. In the present case, the uncontradicted testimony of the Complainant clearly proves that even after 07.10.1996, the vehicle was not in a perfect running condition and was developing snags off and on. The Complainant has also neither produced any evidence nor contended in evidence on record that the vehicle remained unworthy of road and could not run on road. Also he has not produced any evidence to prove that the engine of the vehicle was ever changed which he could have done by producing the original RC bearing one engine number and after the change of the engine, the renewed RC bearing the another engine number. His contention therefore that the

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engine was changed does not find support for evidences and his mere statement to this effect cannot be accepted. The Commission, however, in the light of attending circumstances, accepts his statement that the vehicle was not running smoothly and was developing snags off and on and the defect was not fully removed on 07.10.1996. The Complaint itself was filed on 30.11.1997. Keeping in view all the facts and circumstances of the case, I set aside the impugned order. 12. The Complainant has sought refund of the price of the vehicle. However, he has not produced any evidence on record to prove that the vehicle remained unworthy to road and where the vehicle had been through all these years. 13. The District Forum had ordered for replacement of the vehicle of the Complainant with a new vehicle. However, in view of my above discussion, I modify these directions of the District Forum and award a compensation of Rs.30,000/- which shall be payable by both the Respondents as their liability is joint and severe. The order directions of the District Forum remain the same. 14. I allow the Appeal and award litigation expenses of Rs.10,000/- to the Complainant towards litigation expenses. The entire payment shall be made within eight weeks. 15. With these directions, the present Revision Petition stands disposed of.
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