NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI
REVISIONPETITIONNO. 757OF2012
(Against order dated 25.11.2011 in First Appeal No. 725 of 2009 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)
Manohar Lal S/o Sh. Madan Lal R/o Mehnat Nagar, Nai Basti, Madanganj, Kishangarh, District Alwar Rajasthan
…Petitioner
Versus
1.Raj Motors, Authorised seller for Suraj Automobiles Ltd. At Ambabari, Jaipur, Rajasthan
2.M/s Suraj Automobiles Limited Through its Manager, Ambala Road, Saharanpur,
U.P.
…Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner:Mr. Rishi Prashar, Advocate
For the Respondent No. 1:Nemo
For the Respondent No. 2:Mr. S. K. Tiwari, Advocate, Mr. S. K. Sharma, Adv.
PRONOUNCED ON 01stJuly, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 25.11.2011 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 725/2009, wherein the State Commission dismissed the appeal and set aside the impugned order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’).
2.The relevant facts in brief about this revision are these. On 7.6.1995 the Complainant Manohar Lal paid Rs.102973/- to Raj Motors, the OP-1 for purchase of a tempo. He took delivery of the vehicle on 08.08.1995, with the guarantee certificate for replacement of vehicle and a provision for free service till 3 months or 6,000 kms. As per complainant, the said vehicle had gone out of order within 7 days of purchase and it was informed to the OP-1, but no step was taken for its repair or replacing the vehicle. Therefore, the complainant compelled to pay interest on loan and suffered loss of Rs.6,000/- income per month. The complainant approached the District Forum and prayed for a relief of new vehicle in lieu of old one or refund of Rs.1,02,973/- plus award for damages so occurred due to loss of employment and legal expenses.
3.The District Forum, Camp Jaipur allowed the complaint and ordered the OPs to repay Rs.1,02,973/- along with the interest @ 6%, in lieu of vehicle due to manufacturing defect in tempo and Rs.5,000/- towards compensation and Rs.2,000/- towards the legal expenses.
4.The OP-2 filed the first appeal in the State Commission, being aggrieved by the order of District Forum.The State commission set aside the order of District Forum and dismissed the complaint.
5.Against the impugned order of state commission, the petitioner/complainant files this revision.
6.We have heard the counsel of the parties. The counsel for the complainant argued that, the vehicle was purchased from the authorized dealer of company at Jaipur but thereafter within 2 months it was closed, hence the company directed the complainant that he must get his tempo repaired by taking it to Bharatpur. The OP turned a deaf ear to the several letters of queries about who would bear the expenditure of taking vehicle to Bharatpur. Hence, the complainant could not take his vehicle to Bharatpur and his tempo could not be repaired. The vehicle sold to the Complainant was not of good quality. He further contended that the mechanic Chetan who has worked for last 25 years as a mechanic had given an affidavit that he checked the said Tempo sitara which showed different fittings like the tube of fiat car, axel of ambassador car, gear box of inter jeep, engine of auto riksha vikram tempo, clutch outer matador old model, master cylinder kit Maruti’s and backwardsPATAand kabana, of small autorikshaw. Therefore, his tempo could not run fast on road and could not take load. Thus, assembling various parts of different vehicles, the OP-2 prepared the said vehicle, it is like a fake one andthe OPs have sold it to the complainant by cheating. Thus, the vehicle has manufacturing defect for which M/s Sooraj automobiles Ltd. OP-2 is fully liable.
7.The counsel for the OPs submitted that, the complainant has not specifically stated about the problems in vehicle, there was no expert opinion; hence the complaint is not maintainable. OP-1 was a just dealer, not a manufacturer; hence OP-1 is not liable. While, the OP-2 took a stand that, he sold the vehicle to OP-1, the dealer on 30.6.1995 for Rs.74,993/-, thereafter, OP-1 sold the saidvehicle to Complainant on 8.8.1995 for Rs.1,02,973/-. As per OP-2 warranty of 3 months remains till 7.11.1995 only, thereafter, the question of warranty was a duty of OP-1 only. And also the OP-1 should responsible for providing service during warranty period.
8.We have perused the evidence on record. The District forum recorded the evidence that, the complainant presented several bills of items purchased for the repair of his vehicle, dated 20.8.95,22.8.95, 25.8.95,18.9.95, 2.11.95, 4.11.95,16.4.95 and 19.6.95. This allegation of complainant is also supported by the affidavit of Chetan mechanic. Also, OP-2 himself has admitted that on 07.04.1996 Satyapal was sent and he repaired gear box and differential, i.e. after the warranty period, which clearly signifies that the vehicle had inherent manufacturing defect.
9.The State Commission observed that the district forum has not given permission to take on record the affidavit of Chetan mechanic; hence it lost the evidentiary value. We are of considered view that, this case pertains to year 1995, already over two decades are lapsed, hence now it will be unjust to remand back this case to District Forum for further an expert opinion. Hence, we cannot ignore the affidavit of Chatan which carries crucial evidentiary value.
10.Therefore, we accept this revision and set aside the order passed by the State Commission. At this stage, we do not find any evidence that in whose possession the vehicle is now? Therefore, considering the depreciation and the peculiarity of this case which was dragged for more than two decades, we are of opinion that, lump sum compensation will be just and proper.
11.Therefore, we pass the following order that, if the vehicle is in possession of complainant, he should hand over the vehicle in question to the OP-1, thereafter, OP-1 and 2 directed to pay jointly and severally compensation of Rs.1,50,000/-, along with Rs.25000/- towards mental agony and Rs.20000/- as cost of litigation within 90 days, otherwise it will carry interest @ 9% per annum till it’s realization.
.…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
Mss/12
NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI
REVISIONPETITIONNO. 4728 OF 2013
(Against order dated 16.09.2013 in First Appeal No. 1841of 2009 Of the State Consumer Disputes Redressal Commission, Punjab)
M/s Procter and Gamble Home Products Ltd. Plot No. 1, Industrial Area, Katha, P.O. Baddi, District Solan (H.P.)
…Petitioner
Versus
1.Ms. Taranjit kaur D/o Amarjit Singh, Ward No. 8, Guru Teg Bahadur Nagar,
Dhuri, District Sangrur, Punjab
2.M/s Raj Agency Bhatti Cold Storage Complex, Mithapur Road, Village Alipur, Outside Octroi, Jalandhar, Punjab
3.Sh. Dharam Pal C/o Bansal Karyana Store, Opp. Garg Palace, Dhuri, District Sangrur, Punjab
4.M/s Vandana Luthra Care Clinic,(VLCC) Ansal Plaza, Ferozpur Road, Ludhiana, Punjab
…Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner:Mr. Vijay Kumar Goyal, Advocate
PRONOUNCED ON 01stJuly, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 16.09.2013 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 1841/2009, wherein the State Commission allowed the appeal and set aside the impugned order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’).
2.The brief facts relevant to decide this Revision Petition are; the complainant Ms. Taranjit Kaur used a Pantene Shampoo Pro-V, which was purchased by her father Sh. Amarjit Singh fromSh. Dharam Pal, Bansal Karyana Store the OP-3.Her hair got gamed after use and head washing. The complainant’s father took this matter to OP-3 and the distributorM/s Raj Agency, OP-1. Thereafter, the OP-1 discussed the matter officials ofM/s Procter and Gamble Home Products Ltd. andoffered to get the hair treated at OP-4 i.e.M/s Vandana Luthra Care Clinic(VLCC).It wasfurther alleged that even after treatment by OP-4, the complainant’s hair could not recover nor get at its original position, hence her hair got removed. The complainant filed a complaint against the OPs alleging unfair trade practice and deficiency in service by the OPs, and sought total compensation of Rs.10,000,00/-
3.The District Forum, Sangrur allowed the complaint and held the OP-1/ Petitioner and the OP3/Respondent No. 3 herein jointly and severally liable to pay the complainant a sum of Rs.25,000/- in lieu of consolidated amount of compensation.
4.That aggrieved by the order of District Forum, the OP-1/Petitioner filed a First Appeal No. 1841/2009 before the State Commission and the same has been dismissed on 16.09.2013 with cost of Rs. 2000/-.
5.Against the order of State Commission the OP-1 preferred this revision.
6.We have heard the counsel for the both the parties. The counsel for complaint argued that, there was no material left in the pouch for testing, but the OP-1 could have sent similar pouches in their business establishment to prove that these are not spurious. The counsel for the Petitioner/OP-1 argued that, the complaint is not maintainable, complainant is not a ‘consumer’, and also it has no territorial jurisdiction. He also denied the allegations in the complaint that father of the complainant had purchased the pouch of the Pantene Shampoo from shop of OP No. 3 or he refused to issue the bill. He submitted that, the damage to hair may be due to rough water, dandruff in hair. The complainant failed to handover the sachet of shampoo used by her so that same could be tested. No test was carried out as per section 13 (1) (C) of C.P. Act. It was a goodwill gesture and on humanitarian grounds the OP-1 agreed to bear one time treatment expenses at VLCC.
7.We have requisitioned the file from District Forum and perused the evidence on record, the tuft of hair, the empty pouch of shampoo. After our thoughtful consideration we are of considered view that, that mere non-issue of bill is not sufficient to deny the liability of OPs. The sachet has already been produced by the complainant as evidence; therefore, the complainant is a consumer. Again, the complaint is within territorial jurisdiction, since the Shampoo was purchased from Dhuri and it was used by the complaint at Dhuri, which is Sub Division of Sangrur and falls within the territorial jurisdiction of Sangrur, a part of cause of action had accrued at Dhuri which is within the territorial jurisdiction.
8.The next point is the laboratory test was not performed as per Section 13 (1) (C) of C. P. Act., that the sachet contains only 9 ml shampoo in the pouch, which was used and nothing was left in the Shampoo, hence no material could be sent for test. We are unable to understand that, astheO.P.-1 was in possession of similar pouches in his business establishment and the same could also be sent for test to prove that these are not spurious , but OP failed to do so. The Counsel for the petitioner further argued that, the sachet contains traces of shampoo material and still at this stage laboratory testing is possible. We do not find any basis for such vague argument, because the sachet of shampoo was purchased, it is beyond expiry , i.e. the expiry of which has already lapsed, 5 years ago, hence how it is not possible for correct laboratory analysis. We have perused the tuft of hair, which clearly goes to show totally damaged, discolored hair. Thus, removal ofthose haircertainly caused cosmetic embarrassment to the complainant who is a girl. Therefore, we are of considered view that, the OP failed to provethat why there was such extensive damage to the hair of complainant and also OP did not prove that their product was of good quality. No doubt we appreciate the goodwill gesture of the OP who was kind enough and borne the cost of one time treatment at VLCC, but this won’t absolve the petitioner from its deficiency in service. Moreover, this factor also goes to show that the OP had clandestinely admitted its liability and therefore, the question of showing goodwill gesture had cropped up in order to save its own skin. Also, in our view, it is unjust and unfair to drag the consumer up to National Commission for more than 5 years, for a meager amount of compensation of Rs.25,000/- awarded by District Forum, similar view dovetails from the Judgment of Hon’ble Supreme Court in:-
Gurgaon Gramin Bank vs. Smt. Khazani & ANR.[Civil Appeal No. 6261 of 2012 @ Special Leave Petition (C) No. 8875/2010].
9.Therefore, with entirety of our discussion, we dismiss this revision petition and confirm the order of fora below. However, No order as to costs.
.…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
Mss/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI