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Tata Engineering & Locomotive Co. Ltd. & Others v/s Rajinder Kumar & Others

    First Appeal Nos. 766, 772 of 2012

    Decided On, 10 July 2019

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appearing Parties: Aditya Narayan, Saurabh Seth, Shweta Priyadarsani, Jaimeet Saran, M.L. Sharma, Advocates.

Judgment Text

The complainant, who is also the appellant in FA/772/2012 purchased a bus from Dada Motors Limited, respondent No.1 in both these appeals, on 5.6.1999. The case of the complainant is that he had employed a driver to drive the said bus. His allegation is that the bus gave an average of about 2 km. per litre of diesel, as against the expected average of 3 km per litre in hilly areas, besides consuming 5 litre of mobil oil while covering distance of 1000 km. The pressure plates of the bus were got changed by the complainant, incurring an expenditure of Rs.3,488/-. Despite change of the pressure plates, the problem in the bus persisted. The bus was taken to the workshop of the Dada Motors Ltd. on 28.8.1999 where it remained parked upto 14.9.1999. On 01.9.1999, the pump of the bus was opened, along with its engine and the complainant was advised to get rings inserted in the engine. The said suggestion was not acceptable to the complainant. This is also the allegation that on 14.9.1999, he went to the office of respondent No.1 and was taken to the room of Mr. Rishi Dada, Director of respondent No.1. One Mr. Rajeev Soni, Advocate who had come from Ludhiana also was present there, along with three-four other persons. In the room, he was asked to sign an affidavit and when he refused to sign the said affidavit and other papers, those persons threatened to kill him. He was then forced to sign those papers. Munish Kumar, conductor of the complainant was also made to sign those papers. According to the complainant, the bus was thereafter, driven by Suresh Kumar, mechanic of respondent No.1 and even during that period, the consumption of the diesel of 858 litre in 1803 kms. 4.5 litre of mobil oil was allegedly consumed during that period. It is further alleged that after 25.9.1999, the complainant did not ply the bus and on 1.10.1999, it was taken to Barmana by the employees of respondent No.1, where the pump was reopened. The bus was again taken to Barmana on 6.10.1999 and its pump was opened. However, there was no improvement in the average consumption of the diesel by the bus. The pump of the bus was replaced by a second hand pump but the problem still persisted. Thereafter, the original pump was reinstalled in the bus but the average did not improve. Alleging that a defective bus was sold to him, the complainant approached the concerned State Commission by way of a consumer complaint, seeking replacement of the bus or in the alternative, refund of the amount, which he had paid for purchasing the bus.

2. The complaint was resisted by respondent No.1, which took a preliminary objection that the complainant was not a consumer, he having purchased the bus for a commercial purpose. It was also stated in its reply that during a road test of the vehicle after it had plied for 13292 kms, it was found that it had consumed 0.60 litre of mobil oil in running 221 kms., there was no external oil leakage, the air cleaner and air breather etc., were found to be clean. On dismantling the cylinder, head of the bore wear was within limits. The bus was thus found to be free from the defects alleged by the complainant. It was also stated in the reply filed by respondent No. 1 that the complainant had submitted an affidavit dated 14.9.1999, stating that the vehicle had been repaired to his satisfaction. The appellant in FA/766/2012 also contested the complaint and claimed that all their vehicles pass through stringent quality checks and road trials.

3. The State Commission vide impugned order dated 09.11.2012, directed the opposite parties to pay compensation quantified at Rs.1.00 lacs to the complainant for the mental agony and harassment undergone by him as also for financial loss suffered by him. They were also directed to pay Rs.30,000/- as the cost of litigation to the complainant. Being aggrieved from the said order, the manufacturers of the vehicle are before this Commission by way of FA/766/2012. Since the complainant is also not satisfied with the order passed by the State Commission, he also has filed a cross appeal being FA/772/2012. No appeal has been preferred by Dada Motors Ltd.

4. The substantive question which arises for consideration in these appeals is as to whether there was any manufacturing defect in the vehicle purchased by the complainant or not. Admittedly, an affidavit dated 14.9.1999 duly signed by the complainant has been filed. The said affidavit reproduced in the order of the State Commission and reads as under:

“1. That on dated 01.9.99, I have taken my vehicle chassis No.359357DQQ109234 Engine No.697D28DQQ113541, LP 1510 Bus to M/s. Dada Motors Ltd., G.T. Road, Ludhiana for necessary repair work.

2. That the following work have been carried out by M/s. Dada Motors Ltd., up to my entire satisfaction as pointed out by me.

a) High Engine oil consumption complaint eliminated.

b) Cylinder liner, piston ring set, over haul gasket set, oil filter, engine oil, replaced under warranty

c) FIP repaired under warranty and my vehicle has been set right to all respect”.

5. Alongwith the above referred affidavit, the complainant also executed a satisfaction note on the same day. The said satisfaction note is reproduced in the order of the State Commission and reads as under:

“I Rajinder Kumar, son of Shri Amar Nath, resident of VPO & Tehsil – Bhorang, District Hamirpur, (Himachal Pradesh) in my full sense and under no repeat “NO” pressure or threat hereby declare that the misunderstanding / grievances as arises with M/s. Dada Motors Ltd., Savitri Complex, G.T. Road, Ludhiana (Punjab) pertaining to vehicle Chassis number 359357DQQ109245, Engine No. 697D28DQQ113541, make / type LP1510 LP as purchased by me/us vide Invoice/Bill No. nil dated 5.6.1999 has been settled amicably and now there is no any kind of dispute / grievances pending with M/s. Dada Motors Ltd.”

6. This is an admitted position that the satisfaction note bears signature not only of the complainant but also of one Rajeev Soni, Advocate and Shri Munish Kumar, conductor employed by none other than the complainant. Though, the case of the complainant is that he was forced to sign the affidavit as well as the satisfaction note, by threatening to kill him, the said plea does not inspire confidence and cannot be believed. Had the complainant been forced to execute the affidavit and the satisfaction note, while in the premises of the respondent No.1 Dada Motors Ltd., the first thing he would have done, after leaving the premises of Dada Motors Ltd., would be to go to the police station and lodge an FIR stating therein that he had been forced to execute the affidavit and satisfaction note by threatening to kill him. Admittedly, no such course of action was adopted by the complainant. The conductor of the bus namely Munish Kumar being an employee of the complainant, could easily have been produced by him before the State Commission, to prove that the complainant was forced in his presence, to execute the affidavit and the satisfaction note. No explanation has been given by the complainant for not examining Munish Kumar or filing his affidavit in support of the allegations made by him. Moreover, there could be no reason for Mr. Munish Kumar to sign the satisfaction note. Had the matter not been amicably settled between the complainant and M/s. Dada Motors Ltd. Therefore, I have no hesitation in confirming the finding of the State Commission that all the issues with respect to the bus in question, stood resolved on 14.9.1999, when the affidavit and the satisfaction note were executed by the complainant.

7. More importantly, no expert evidence has been produced by the complainant to prove that there was a manufacturing defect in the bus purchased by him from Dada Motors Ltd. No Automobile Engineer was produced by the complainant to prove that the bus in question suffer from a manufacturing defect. The onus was upon the complainant to prove that the bus purchased by him was suffering from a manufacturing defect. The responsibility of the manufacturer / dealer was to repair the vehicle and replace the defective part, if any, during the warranty period of the vehicle. The buyer can seek replacement of the vehicle or refund of the price paid by him only if he is able to prove such a manufacturing defect in the vehicle, which cannot be conveniently rectified. In the absence of technical evidence, it would be difficult to say that the vehicle purchased by the complainant suffered from a manufacturing defect.

8. The learned counsel for the complainant drew my attention to hand-written document available on page No.81 of the paper book of the appeal filed by him and submitted that the above referred document is the report of a mechanic of Dada Motors Ltd., dated 26.9.1999, wherein it is stated that on a hilly terrain, the vehicle required application of special gear. However, neither the aforesaid report is written on the letterhead of Dada Motors Ltd., nor the complainant has filed the affidavit of the author of this document or produced him as a witness. In the absence of the affidavit of the author of this document or his production in the witness box, the document cannot be said to have been duly proved. This is more so when it is not even written on the letterhead of Dada Motors Ltd., though it purports to be report of a mechanic of Dada Motors Ltd.,

9. The learned counsel for the complainant also submitted that after institution of the consumer complaint, the complainant has surrendered the permit of the vehicle to the Regional Transport Authority, Hamirpur and as per the inspection carried out at the instance of the Regional Transport authority, Hamirpur, the performance of the vehicle (pick-up) was a little bit poor on a hilly area. The author of the above referred report however, has not been produced before the State Commission, nor his affidavit has been filed by the complainant. In the absence of the affidavit of the author or his production in the witness box, no reliance can be placed on the aforesaid document to prove the alleged manufacturing defect in the vehicle.

10. For the reasons stated hereinabove I find no merit in FA/772/2012 filed by the complainant Rajinder Kumar and the same is accordingly dismissed with no order as to costs.

11. FA/766/2012 has been filed by the manufacturer of the vehicle namely Tata Engineering & Locomotive Co. Ltd. (TELCO). Since

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no manufacturing defect in the vehicle has been proved, the appeal filed by the manufacturer needs to be allowed. The order of the State Commission, to the extent it is directed against the appellant in FA/766/2012, is set aside. However, since no appeal has been preferred by M/s. Dada Motors Ltd., and the facts and circumstances of the case clearly show lack of due efficiency, and promptness on the part of Dada Motors Ltd., in rendering services to the complainant, he having been made to take the vehicle multiple times to the workshop of Dada Motors Ltd., and the problems in the vehicle having not been rectified on the very first visit, the award of compensation, to the extent it is directed against Dada Motors Ltd. does not call for any interference by this Commission in exercise of its appellate jurisdiction. 12. As a result the compensation of Rs.1.00 lac awarded by the State Commission, along with interest on that amount and cost of litigation in terms of the order of the said Commission shall be payable only by Dada Motors Ltd., respondent No.1 in both the appeals, to the complainant. Both the appeals stand disposed of accordingly.