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2006 Supreme(UK) 61
2006 (1) CPR 401 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
CIRCUIT BENCH KARNATAKA, BANGALORE
M.B. Shah, President and Mrs. Rajyalakshmi Rao, Member
R. Raja Rao—Appellant
versus
M/s. Mysore Auto Agencies & Anr.—Respondents
First Appeal No. 455 of 1997
Decided on 27-2-2006
Counsel for the parties :
For the Appellant :Arvind Kamath, Advocate.
For the Respondent No. 1:Mahesh K.V. Advocate.
For the Respondent No. 2:P.H. Ramalingam, Advocate.
IMPORTANT POINT
If a consumer is forced to return the vehicle to dealer/manufacturer time and again on the ground that it is required to be repaired, he is entitled to refund of price as a defective vehicle cannot give the satisfaction of a new vehicle.
Headnote:Consumer Protection Act, 1986 — Section 19 — Appeal against order of State Commission refusing to replace defective vehicle or to refund price — Dealer used the defective vehicle and repaired it for years — Non-acknowledge-ment of defects — Whether manufacturer and dealer be held jointly liable to refund the price ? (Yes) — Appeal allowed accordingly.
Held: Thereafter, there is a report dated 16.3.2000 by the Automobile Association of Southern India, which was obtained on the basis of the directions given by this Commission. This report, no doubt, is an ex-parte report, because the Complainant was not informed about the inspection. However, at the same time, the report reveals that the vehicle was road worthy by test driving, engine was smoothly running and everything was normal.(Para 16)
This would again reveal that after 1996, the vehicle was extensively repaired. This would mean that after the delivery of the vehicle to the dealer Opposite Party No.1 had extensively used the vehicle and repaired the same. This would not mean that at the time of purchase of the vehicle the same was not defective as pointed out above. On the contrary, dealer's reports reveal that it was required to be brought for repairs within a few days of its purchase.(Para 17)
It is shameful that even the vehicle was defective. Respondents failed to acknowledge the defects. And, thereafter, Opposite Party No.1 used the vehicle for years together without acknowledging the defects and litigating the matter for years together. The Appellant suffered not only monetary loss but mental agony all throughout. It is regrettable that we have developed a tendency not to replace the defective vehicles.(Para 18)
In this view of the matter, this appeal is allowed. The impugned order passed by the State Commission is set aside. The Respondents are jointly and severally liable to refund the amount of Rs.3,68,729/- with interest at the rate of 12% p.a. from 1.2.1993 till its payment. We are not inclined to direct the Respondent to pay interest at the rate of 24% p,a. as claimed on the ground that the Bank was charging at that rate. Hence, the Respondents are directed to refund the amount of Rs.3,68,729/-, within a period of eight weeks from today, with interest at the rate of 12% p.a. from the date of its purchase i.e. 1.2.1993 till its payment. The Respondents shall also pay costs assessed at Rs.10,000/- to the Complainant.(Para 19)
Result : Appeal allowed.
M.B. Shah, President — If the
frustrated (consumer) purchaser of a vehicle is forced to hand over the vehicle to the dealer/manufacturer on the ground that it is required to be repaired every now and then within a few days
of its purchase, can it be said that he shall be deprived of refund of the amount spent by him for the purchase the vehicle?
2. Obvious answer is — the vehicle should be replaced or the amount should be refunded. Reason being, the defective vehicle would not give the satisfaction of a new vehicle.
3. Further, that after purchase of the new car, if a person is required to visit garage for repair of the car regularly, it would be a frustrating and annoying experience. It is also rightly pointed out that various tempting advertisements are issued for marketing such cars and if the car is found to be defective requiring regular repairs, there would be total mental dissatisfaction of purchasing a new vehicle.
4. Facts in short:
Appellant is the Complainant before the State Commission.
On 27.1.1993 he had purchased a Swaraj Mazda, a light commercial vehicle form the Opposite Party No.1, M/s. Mysore Auto Agencies and paid Rs.3,68,729/- towards its consideration.
Warranty was for 12 months from the date of its purchase, i.e. 4.2.1993.
The vehicle started giving troubles within a few days of its purchase.
It was sent to the Opposite Party No.1 (dealer) for repairs for thrice, i.e. on 6.3.1993, 9.3.1993 and 15.3.1993.
As there was no improvement, the Complainant had his vehicle checked up with M/s. K.H.T. Agencies Pvt. Ltd., Bangalore, who had opined that that the vehicle needed major repairs, because there was mixing of the engine oil with diesel oil and seizing of the nozzle. Again on 28.7.1993, the Complainant took the vehicle to the Opposite Party No.1 for necessary repairs.
As there was no improvement, the Complainant had to deliver back the vehicle to the Opposite Party No.1 on 27.8.1993.
Then, on 6.9.1993 a legal notice was issued to the Opposite Parties for replacing the defective vehicle with a new vehicle.
By letter dated 18.9.1993 the Opposite Party No.1 refused to comply with the terms of the legal notice.
Thereafter, the Appellant visited the office of the Opposite Parties for a number of times. As the vehicle had serious manufacturing defects he had issued a notice to the Opposite Parties to return the cost of the vehicle along with a sum of Rs.1 lakh for loss and damages, or supply a new vehicle with the said amount of Rs.1 lakh.
The Appellant further states that he had availed himself of loan facility from Corporation Bank of Mandya Branch of Karnataka, for the purchase of the vehicle and he was liable to pay interest at the rate of 24.75% and the said bank was likely to initiate recovery proceedings.
Hence the Appellant approached the State Commission by filing Complaint No. 233 of 1993.
When the complaint was pending in the State Commission, Prof. Badrinath was appointed as a Commissioner for the inspection of the vehicle. He had conducted inspection on 25.7.1996 and submitted his report on 1.8.1996. He opined that if on test running the diesel oil and the engine oil are mixing, it will be a serious defect in the engine.
The State Commission dismissed the complaint by order dated 26.9.1997.
Hence, the Complainant has come in appeal before this Commission.
5. Defence of the O.P.No.1 (Dealer)
1. The Complainant is not a self-employed transporter and he does not drive the vehicle.
2. Because of repeated requests made by the complainant with all its pleas, the company had shown sympathy and extended the warranty as a special case with a warning to him that he should not mix kerosene with diesel and not to overload the vehicle.
3. The vehicle would not have developed problem had it put to use as per the conditions stipulated.
4. Pistons, rings head, gasket though were worn out on account of misuse only, but in best interest of the customers, the opposite party replaced the same.
5. That t
