BHAGIRATHI KRISHNAN Vs. HINDUSTAN MOTORS LIMITED & ORS

JUDGEMENT

(1.) THE above appeals are preferred from the order dated 21st November, 2001 passed by the CDRF, Kannur in O.P. No. 233/98. The complaint in the said original petition was filed by the appellant in appeal No. 96/03 against the respondents as opposite parties requesting for a direction to direct the opposite parties to replace the defective car which was purchased from the second opposite party dealer and manufactured by the first opposite party manufactured and in the alternative to refund the price of the said car amounting to Rs. 4,67,246 along with compensation of Rs. 30,000 for deficiency in service on the part of the opposite parties in effecting the sale of a defective care and also in curing the defects in the said car. The opposite party Nos. 1 to 3 entered appearance and filed separate written versions contending that there was no deficiency in service on their part in effecting the sale and service of the disputed car and that the complaint preferred is barred by limitation; and that the Forum below (CDRF, Kannur) is not having the jurisdiction to entertain the complaint in O.P. No. 233/98. They also contended that there was no manufacturing defects in the said vehicle and that the claim for replacement of the car by a new vehicle or to get the price of the car refunded is unsustainable. Thus, the opposite parties prayed for dismissal of the complaint.

(2.) BEFORE the Forum below the complainant's husband has been examined as PW1 and anther witness from her side as PW2. Exts. P1 to P29 were also marked on the side of the complainant. From the side of the first opposite party (manufacture) its territorial Manager was examined as DW1 and on the side of the second opposite party, the dealer its Manager was examined as DW2. The Foreman of the third opposite party approved workshop has been examined as DW2. Exts. R1 to R10 were also marked on the side of the opposite parties. An expert Commissioner was appointed by the forum below and the expert filed his report on inspecting the vehicle. On considering all the evidence available on record the Forum below passed the impugned order finding the opposite parties deficient in rendering service in effecting the sale and services of the car which was purchased by the complainant from the second opposite party dealer. Thereby the opposite parties are directed to replace the chassis of the disputed Contessa car purchased by the complainant and in the alternative take back the car and to refund the price of the car amounting to Rs. 4,67,246 to the complainant. The opposite parties are also directed to pay a sum of Rs. 15,000 as compensation with cost of Rs. 750 to the complainant. The complainant therein is not fully satisfied with the award passed by the Forum below. Hence he preferred the appeal No. 96/03. The opposite party Nos.1 to 3 are aggrieved by the impugned order passed by the Forum below. Hence the opposite party Nos. 1 to 3 filed the appeal Nos. 77/03, 71/03 and 76/03 respectively.

(3.) WHEN the above four appeals were taken up for final hearing, there was no representation for the appellant in Appeal No. 71/03 (second opposite party) and Appeal No. 76/03 (third opposite party). So we heard the Counsel for the appellants in Appeal Nos. 77/03 (first opposite party) and Appeal No. 96/03 (complainant). The learned Counsel for the appellant in Appeal No. 77/03 (first opposite party) submitted his arguments based on the various grounds urged in the memorandum of the present appeal. He much relied on the expert report submitted by the expert Commissioner who was deputed from the Forum below to ascertain the defects in the disputed vehicle. It is argued that the expert Commissioner has reported that there was no manufacturing defects in the vehicle. He also challenged the testimony of PW2 and Ext. P29 report submitted by PW2. It is submitted that the testimony of PW2 and Ext. P29 report can only be treated as interested and that the Forum below has gone wrong in relying on the testimony of PW2 and Ext. P29 report. It is also argued that the opposite parties were always ready and willing to cure the defects pointed out by the complainant and all those minor defects were cured then and there and that the complainant has been preferred with ulterior motive of getting unlawful enrichment. Thus, the learned Counsel for the appellant in Appeal No. 77/03 (first opposite party) requested for setting aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the appellant in Appeal No. 96/03 (complainant) supported the findings and conclusions of the Forum below to a greater extent. He pointed out the inherent defects in the vehicle which was purchased by the complainant from the second opposite party and manufactured by the first opposite party Hindustan Motors Limited. It is submitted that the opposite parties were not in a position to cure the inherent defect in the vehicle and those defects are still existing. It is also pointed out that the opposite parties had taken the vehicle to their garage for curing the defects and they failed to cure the defects in the vehicle and that there was inordinate delay on the part of the opposite parties in rendering service to the complainant with respect to the defects in the vehicle. It is further pointed out that the disputed vehicle was having inherent defect of side pulling, failure of break system and unusual wear and tear of the left front tyre, etc. and those defects in the vehicle were only due to manufacturing defects in the vehicle. So, the complainant/appellant in OP No. 233/98 requested for modifying the impugned order passed by the Forum below so as to direct the opposite parties to replace the defective vehicle by a brand new vehicle and in the alternative to refund the price of the vehicle amounting to Rs. 4,67,246 with compensation of Rs. 30,000 for deficiency in service on the part of the opposite parties with an adequate cost incurred by the complainant for prosecuting the complaint in OP No. 233/98.