The manufacturer and dealer are jointly liable for deficiency in service if they fail to replace a defective scooter despite the lapse of three years.

Mr. Justice K.C. Bhargava, President— This is an appeal against the judgment and order dated 28.9.1998 passed by District Forum, Gorakhpur in Complaint Case No. 116 of 1996. The facts of the case, stated in brief, are that the complainant Sri Ashok Kumar Singh purchased a Chetak Bajaj scooter on 28.8.1996 for an amount of Rs. 24,806.70. Since the purchase of this scooter there was some noise in the clutches. The opposite party told that this is a minor defect and it will be repaired. Inspite of several attempts being made, the noise from the clutches could not be eliminated. On 7.9.1996 one Niaz, mechanic removed the back tyre and after taking out the clutch plate, tried to remove the defect but it could not be done. Service Engineer of the opposite party Sri O.P. Singh told that the clutch of the vehicle has become defective and for which the Engine will have to be opened and the clutch will have to be replaced. It is alleged by the complainant that if the engine is opened then the scooter will not remain a new one. Inspite of several requests the scooter was not changed and the defect could not be removed. It was mentioned that it was a manufacturing defect but inspite of this the opposite party was not prepared to change the scooter. Even after several attempts the scooter remained in the same condition.

2. The complainant has prayed for damages of Rs. 50,000/- on account of mental tension etc. He also prayed for Rs. 24,806.70 as the amount which was spent in getting the scooter replaced alongwith cost.

3. The opposite party No. 1 filed a written statement and alleged that the case is not maintainable. According to the answering opposite party on 7.9.1996 a complaint was made about the noise in the clutch and the same was repaired on 9.9.1996. The defendant pretending to go to Lucknow did not take delivery of the scooter. Notices were sent to him but even then the scooter was not taken delivery of. On 22.11.1996 the opposite party informed the complainant of charges for keeping the scooter, but delivery of the vehicle was not taken and nothing was paid. There was no manufacturing defect in the scooter.

4. After hearing the learned Counsel for the parties and considering the evidence on record, the learned District Forum ordered for replacement of the scooter by a new one and in case of refusal to do so, return the price alongwith 18% per annum interest as loss. A sum of Rs. 10,000/- as compensation and Rs. 500/- as cost was also awarded in favour of the complainant. It was further ordered that in case of default in compliance of this order within 45 days, interest at the rate of 12% per annum will be paid on the entire amount till the date of payment.

5. Aggrieved against this order, opposite party No. 1 has come in appeal and has challenged the correctness of the order passed by the District Forum.

6. Notice was also sent to M/s. Bajaj Auto Limited, Pune, opposite party No. 2, but inspite of service of notice, none turned up to contest the case of the complainant. From this Commission notice was sent by registered post to M/s. Bajaj Auto Limited in May, 1999 and even after lapse of one month the same was not returned unserved and hence service was presumed sufficient and the appeal proceeded against Bajaj Auto Limited.

7. We have heard the learned Counsel for the opposite party as well as the complainant. Learned Counsel for the appellant has argued that there was no manufacturing defect in the scooter and there was only a slight noise in the clutch which was repaired within two days of bringing this scooter. He has also argued that the scooter is still lying with the dealer appellant and the complainant did not turn up to take delivery of the scooter.

8. A perusal of the fact goes to show that the scooter was brought for repairs by the complainant at the appellant’s shop on 7.9.1996 but inspite of several attempts being made it could not be repaired. On the other hand, the contention of the appellant is that it was repaired