KINETIC ENGINEERING LIMITED Vs. BALDEV SINGH AHLUWALIA

JUDGEMENT

(1.) Vide this order two Appeals (Nos.537 and 554 of 1998) are being disposed of as both the appeals have been filed against the same order.

(2.) Purchase of one Kinetic Spark two-wheeler from opposite party No.2, i. e. M/s. Inder Auto Enterprises, Ludhiana, who is the authorised dealer of opposite party No.1, is not denied. It is further not denied that the purchase price of the Kinetic Spark was paid vide Invoice No.3 dated 4.3.1996 to the opposite party and opposite party No.2 had issued a separate receipt No.9740 dated 4.3.1996 regarding the receipt of Rs.13,900/- as the purchase price of the two-wheeler. It has also not been disputed that the two-wheeler bears Engine No.01002844 and Chassis No.04005394. The grouse of the complainant before the District Consumer Disputes Redressal Forum, Sangrur (hereinafter called the District Forum) was that the two-wheeler sold to him by the opposite party was a condemned vehicle and it was manufactured in the year 1994 and it was only when it could not be sold in the open market, opposite party No.2 sold the two-wheeler to the complainant by assuring that the two-wheeler was a product of the year 1996. Further grouse of the complainant before the District Forum was that due to manufacturing defect in the vehicle it created trouble from the very date of purchase. Even on repair by the opposite parties it could not put the vehicle in proper functioning. Despite complaints made to the opposite parties, the two-wheeler was not repaired and it could not be repaired because it had manufacturing defect. On the other side, the opposite parties took the stand before the District Forum that the two-wheeler had no manufacturing defect and it was of 1996 make. The opposite parties thus requested the District Forum to dismiss the complaint with costs. After hearing the learned Counsel for the parties and after carefully going through the pleadings and documents produced on the file, the District Forum allowed the complaint and directed the opposite parties to get back the two-wheeler in dispute from the complainant and make refund of the purchase price i. e. Rs.13,900/- to the complainant along with interest @ 12% per annum from the date of purchase of the vehicle till the date of refund of the amount to the complainant. Rs.1,100/- was also awarded as consolidated amount of costs and compensation to the complainant.

(3.) District Forum reached at this conclusion on the basis of reasons reproduced hereunder : "the complainant has produced his sworn affidavit as well as copies of various applications submitted to the O. Ps. from time to time. Even these applications have been fully corroborated by the sworn affidavits of various witnesses who saw the defects on various occasions. The Counsel for the O. P. could not even produce any document to prove that the two-wheeler was quite in perfect working condition. It was further not proved as to why the various witnesses, the sworn affidavits of whom have been placed on file are stating about the defects in the two-wheeler sold to the complainant. So much, so even the reports of various mechanics pertaining to defects in the vehicle produced by the complainant have not been denied by the O. P. The O. Ps. have miserably failed to produce any report of any mechanic to show that there is no manufacturing defect in the two-wheeler. No rebuttal evidence was produced on the file. Thus, from the aforementioned discussion, it has been clearly established that the two-wheeler sold to the complainant is certainly defective piece and the said vehicle contained manufacturing defect which could not be removed by any repairs carried out by the mechanics of O. P. Thus, the O. Ps. are liable to replace it with a genuine piece of two-wheeler or refund its price to the complainant. In this respect, the Counsel for the complainant has placed reliance on various authorities pronounced either by State Commissions or National Commission. The said authorities have been reported in II (1996) CPJ 45, II (1996) CPJ 152, II (1996) CPJ 140. The perusal of these citations clearly goes to reveal that where there is any manufacturing defect in machinery, the same is to be replaced or its price is to be refunded. Thus, on this point, we fully agree with the decisions pronounced by various State Commissions and National Commission and the complainant has been successful in proving that the two-wheeler sold to the complainant by the O. P. No.2 is a defective one and it contains manufacturing defects and thus, he is entitled to get the refund of the price of the two-wheeler. The Counsel for the complainant further contended that the disputed two-wheeler was sold by the O. P. No.2 by making false assurance that the two-wheeler was manufactured in the year 1996. This fact has been stated in bill dated 4.3.1996, a copy of which has been placed on file as Ex. C-1. Similarly, it has also been mentioned in another receipt, a photocopy of which is Ex. C-2 and also in sales certificate which is placed on the file as Ex. C-3. In all these documents, the year of manufacture (model of the moped) has been mentioned as 1996. Even the O. P. has written in his written version that the vehicle in dispute is manufactured in the year 1996 and not in 1994. But, the Counsel for the complainant has produced one document marked as Ex. C-25. It is a pencil print of the chassis number. It has been filed to prove that this pencil print clearly proves that the manufacturing year is 1994 and not 1996 as claimed by the O. P. No.2. Even a representative of the O. P. No.1 i. e. Service Engineer appeared before this Forum at the time of arguments and he fully agreed with the contentions of the Counsel for the complainant that the disputed vehicle was in fact manufactured in the year 1994 and not in 1996. Thus, from this admission of the Service Engineer as well as representative or authorised agent of the O. P. No.1, who is manufacturer of the disputed moped, leaves no doubt that the two-wheeler was manufactured in the year 1994 and not in 1996. It has been further contended by the Counsel for the complainant that by making false assurance that the manufacturing year of the moped is 1996, the O. P. has violated the rules of fair trade practice and on this score alone, the complainant is entitled to get the moped replaced or to get refund of the price of the moped. On the other hand, the Counsel for the O. P. stressed that when a structural modification is affected in the two-wheeler without the consent of the manufacturer or dealer then, in that case, the vehicle neither can be replaced nor its price can be refunded under the Motor Vehicles Act. The Counsel for the complainant has further produced a photocopy of written version which is placed on the file as Ex. C-46 in case Raj Kumar V/s. O. Ps. In that case the O. P. i. e. seller of the two-wheeler had admitted that in case of Raj Kumar a two-wheeler was sold to the complainant which also contained similar defects. In that case, the O. P. No.2 i. e. dealer himself, who converted the two-wheeler into a trimoped. Even the said two-wheeler is also alleged to be defective due to manufacturing defect. Thus, in view of said admissions made by O. P. No.1 in written version, if any change is effected by dealer himself, then, the said change in respect of the vehicle sold to the complainant does not affect the right of complainant to get the same replaced. We fully agree with the arguments of the learned Counsel for the complainant that if the dealer himself can effect change in the one case then, the same change can also be effected in the similar vehicles. Thus, we further agree with the contentions of learned Counsel for the complainant that the O. P. No.2 has violated the rules of fair trade practice by selling a two-wheeler which was manufactured in the year 1994 and thereby misrepresenting that it was manufactured in the year 1996. We hold that it is a clear-cut violation of the rules of fair trade practice by the O. P. No.2 against the complainant. Thus, from the aforementioned discussions, we have come to the conclusion that the two-wheeler sold to the complainant was manufactured in the year 1994 and it was a condemned vehicle, which when could not be sold in the open market was sold to the complainant by misrepresenting that the same was manufactured in the year 1996. " We entirely agree with the reasoning advanced by the District Forum while accepting the claim of the complainant.3a. Throughout the stand of the opposite parties has been that the year of manufacturing (model of the two-wheeler) is 1996. This fact has been stated in the bill dated 4.3.1996 (Ex. C-1 ). It has also been mentioned in receipt, photocopy of which is Ex. C-2 and in the Sale Certificate Ex. C-3 that year of manufacture of the two-wheeler is 1996. The opposite parties have even in their written statement stated that the vehicle in dispute is manufactured in the year 1996 and not in the year 1994. But Ex. C-25 produced by the complainant tells entirely a different story. Ex. C-25 is a pencil print of the chassis number for showing the manufacturing year of the two-wheeler as 1994 and not 1996. We have noted down from the order of the District Forum, which is not disputed before us that even the representative of the opposite parties i. e. Service Engineer who appeared before the District Forum at the time of arguments had agreed with the contention of the Counsel for the complainant that the disputed vehicle was infact manufactured in the year 1994 and not in the year 1996. From this admission of the Service Engineer as well as representative/authorised agent of opposite party No.1, who is manufacturer of the disputed moped, the District Forum has rightly reached at the conclusion that the two-wheeler was manufactured in the year 1994 and not in the year 1996. In this way, the opposite parties have rather committed an unfair trade practice.