IMPORTANT POINTS
1) Determining ‘defect’ in accordance with the procedure laid down under Section 13(1)(c) to (g) not required, as this “omission” is not fatal.
2) After about 17 years, it will be a travesty of justice if this Commission orders the case to be remanded to Distt. Commission to determine ‘defect.’

ORDER

This Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986 (the ‘Act 1986’) in challenge to the Order dated 05.10.2007 of The State Consumer Disputes Redressal Commission, Gujarat (the ‘State Commission’) in Appeal No. 1066 of 2007 arising out of the Order dated 06.11.2006 of The District Consumer Disputes Redressal Commission, Ahmedabad Rural (the ‘District Commission’) in Consumer Complaint No. 463 of 2004.

2. Heard the learned counsel for both sides.

Perused the material on record, including inter alia the District Commission’s Order dated 06.11.2006, the State Commission’s impugned Order dated 05.10.2007 and the Petition.

3. The disputes relates to recurring problems in a new vehicle purchased by the Complainant (the Respondent herein), the Buyer, from the Opposite Party (the Petitioner herein), the Dealer.

4. The District Commission vide its Order dated 06.11.2006 allowed the complaint on contest and ordered for the Complainant to hand over the subject vehicle to the Dealer and for the Dealer to pay the sale price of the vehicle i.e. Rs. 3,61,125/- with interest at the rate of 9% per annum from the date of filing of the Complaint alongwith compensation of Rs. 5,000/- and cost of litigation of Rs. 2,000/-.

5. The Dealer appealed before the State Commission. The State Commission made its appraisal and vide its Order of 05.10.2007 dismissed the appeal “for want of prima facie merit”.

6. Learned counsel for the Dealer argues that the fora below have used the word ‘defect’ in their respective Orders. The procedure laid down in Section 13(1)(c) to (g) of the Act 1986 has not been followed. If the vehicle had a ‘defect’, the Manufacturer should also have been made a necessary party. The letter dated 31.08.2004 written by the Dealer to the Complainant is not an admission of ‘defect’.

The submission is that the matter be remanded to the District Commission, for the District Commission to make the Manufacturer a necessary party and return fresh findings re ‘defect’ after following the procedure laid down in Section 13(1)(c) to (g).

7. We have perused the Order dated 06.11.2006 of the District Commission and the Order dated 05.10.2007 of the State Commission.

A bare reading of the two Orders shows that the word ‘defect’ has been used by the two fora to connote recurring problems in the new vehicle, which the Dealer could not rectify, which were of such nature and recurrence that they led to the vehicle having to be parked with the Dealer, the Dealer was not able to rectify the problems and return the vehicle in satisfactory roadworthy condition accompanied with the requisite test reports.

The mere factum of the vehicle lying with the Dealer since 2004, the recurring problems in the vehicle not having been rectified by the Dealer and the vehicle not having been returned to the Complainant in satisfactory roadworthy condition are indicative enough of irreparable / unrepaired problems in the vehicle.

In so far as the letter dated 31.08.2004 written by the Dealer to the Complainant is concerned, it inter alia points that the Complainant did not take delivery of the vehicle and requested for the requisite tests to be conducted thereon by the Dealer, self-evidently an indication that the Complainant was not satisfied with the repairs undertaken / the satisfactory roadworthiness of the vehicle. The letter does not indicate ‘defect’ as may require adherence to the procedure prescribed under Section 13(1)(c) to (g) of the Act 1986. It however decisively points towards recurring irreparable / unrepaired problems as tantamount to manifest lack of satisfactory roadworthiness, the onus of remedying which was on the Dealer (the vehicle being new and under warranty), and which onus the Dealer did not discharge. Overall, this letter does not weigh in favour of the Dealer.

8. In the light of the discussion above, we are of the considered opinion that determining ‘defect’ in accordance with the procedure laid down und