BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE (ADDL. BENCH)

DATED THIS THE 4^th DAY OF AUGUST, 2023

Appeal Nos.786/2015, 978/2015 and 885/2015

PRESENT

SRI.RAVISHANKAR, JUDICIAL MEMBER

SMT.SUNITA C. BAGEWADI, MEMBER

1.      Appeal No.786/2015

M/s. L.M. Premier

          NH 17, Heroor,

          Opp: Sugar Factory,                                           ...Appellant/s
          Brahmavara – 576 213

          Udupi Taluk                                                

          Rep. by its Managing Partner

          (By Sri.Nataraja Ballal, Advocate)

-V/s-

1. Mr.J.Suresh

S/o Jaganath Rao,

Keshava Mane,                                          … Respondent/s

Naniya Post,

Hosanagara Taluk

2. Premier Ltd,

(Formerly the Premier

Automobiles Ltd.)

58, Nariman Bhavan,

Mumbai-400 021

Reg. Office and work at

Mumbai-Pune Road,

Chinchwad, Pune-411 019

(OP No.2-By Smt.Shailaja Paramesh, Advocate)

(OP No.1-Absent)

2.     Appeal No.978/2015

M/s. Premier Ltd,

Corporate office,

58, Nariman Bhavan,

Nariman Point                                                    ...Appellant/s
          Mumbai-400 021

          (By Smt.Shailaja Paramesh, Advocate)

-V/s-

1.      Mr.J.Suresh

          S/o Jagannath Rao,

Keshava Mane,

          Haniya post,

          Hosanagara Taluk,

                                                                   … Respondent/s        

2.      L.M. Premier,

(A Division of L.M. Motors)

N.H.17, Heroor,

                Opp. Sugar Factory,

                Brahmavara,

                Udupi-576 213

(OP No.1-By Sri.Basava Prabhu Hosakeri, Advocate)

          (OP No.2-Absent)

3.     Appeal No.885/2015

        Mr.J.Suresh

S/o Jaganath Rao,

Keshava Mane,                                                    …Appellant/s     Naniya Post,

Hosanagara Taluk

Dist: Shivamogga

          (By Basava Prabhu Hosakeri, Advocate)

-V/s-

1.      M/s. Premier Ltd,

Corporate office at

# 58, Nariman Bhavan,

Nariman Point,

Mumbai-400 021                                      … Respondent/s

Regd. Off: and work at

Chinchwad, Pune-411019

2.      L.M. Premier,

(A Division of L.M. Motors)

N.H.17, Heroor,

                Opp. Sugar Factory,

                Brahmavara,

                Udupi-576 213

(OP No.1-By Sri.Kavitha.H.C, Advocate)

          (OP No.2-Absent)

C O M M O N   O R D E R

BY SMT.SUNITA C. BAGEWADI, MEMBER

The Appellant/Opposite Party No.2 in appeal No.786/2015 and the Appellant/Opposite Party No.1 in appeal No.978/2015 being aggrieved by the order dated 22-07-2015 passed by the District Consumer Commission, Shimoga in remanded complaint No.133/2010 and prays to set-aside the order and grant such other relief as deemed fit.

2. Appellant/complainant in appeal No.885/2015 being aggrieved by the order dated 22-07-2015 passed by the District Consumer Commission, Shimoga in remanded complaint No.133/2010 and prays to allow the appeal and grant such other relief as deemed fit, in the interest of justice and equity.

          3. The Appellants/Opposite Party No.1 and 2 and Appellant/ Complainant are the same in all these Appeals and the facts involved in these Appeals are one and the same.  Hence, these Appeals are taken up together and are being disposed of by a common order.  

4. Perused the order passed by the District Commission, we noticed that earlier the complainant has filed the complaint where the Opposite Parties are remained absent during the first round of litigation and exparte order passed in favour of the complainant on 13-10-2010. As against that the order the 1^st Opposite Party filed an appeal No.4776/2010 and the 2^nd Opposite Party also filed another appeal No.560/2011 before the State Consumer Commission, Bengaluru. The Hon’ble State Commission after hearing both parties passed order on 2-6-2010 and dismissed both the appeals and confirmed the order passed by the District Commission. As against that order, the Opposite Parties Nos.1 and 2 filed Revision Petition Nos.2943/2011 and 3019/2011 before the National Commission, New Delhi. In those cases, the ordered by the National Commission after hearing both parties allowed the Revision Petitions and set aside the order passed by the State Commission as well as District Commission and remanded back the matter to the District Commission with a direction to give an opportunity to the Revision Petitioners/Opposite Party Nos.1&2 to file their written statement and evidence and also directed both parties to appear before the District Commission on 22-1-2015.  

5. The brief facts of the complaint is that, the complainant is an agriculturist carrying on agricultural operation at Keshva Mane, Haniya post, Hosanagara taluk, Shimoga District. He got attracted by the advertisement given by the Opposite Parties in respect of “Road Star” vehicle and decided to buy the same. It is also the case of the complainant that in order to mobilize requisite funds, he borrowed money from Canara Bank, Hosanagara agreeing to repay the same with EMI of Rs.8,000/- over a period of 60 months and purchased on 26-10-2009. It is also stated that the said vehicle was registered with RTO, Sagar Taluk by spending Rs.16,500/- and insured the vehicle by paying Rs.11,150/- and paid other taxes to run the said vehicle. It is further stated that from the day one after the purchase of the vehicle, it was giving problem. The problem started with clutch plate, fan belt, engine problem etc. When the problem continued with that vehicle it was brought to the notice of the 2^nd Opposite Party on 28-1-2010, 30-1-2010 and 29-3-2010. It is further stated that there was a manufacturing defect in the vehicle which resulted in continuous problem which was mainly due to failure of the fan belt, breakage of clutch plate etc. Consequently he has towed the vehicle to the 2^nd Opposite Party garage situated at Brahmavara, Udupi. The complainant submits that he has spent thousands of rupees for repairs. As the said vehicle was not available for the agriculture work, he has to hire some other vehicle for which purpose also he had spent thousands of rupees. In addition to that he has to pay EMI to the bank towards repayment of the loan. It is stated that though the complainant issued a legal notice on 12-6-2010 calling upon the Opposite Parties to replace the vehicle with brand new vehicle with a warranty etc. the Opposite Parties have given an untenable reply. This it is submitted that due to the defect in the manufacturing of the vehicle there was an absolute deficiency of service on the part of the Opposite Parties. Hence prays for passing the order as prayed in the complaint.

6. The Opposite Party Nos.1 and 2 who appeared in pursuance of the directions given by the Hon’ble National Commission have filed separate objections. The 1^st Opposite Party in his written version has contended that there is no cause of action to file this complaint. It is also stated that the District Commission has no jurisdiction to try this case since the Opposite Parties are not within the jurisdiction of this District Commission. It is contended that the complainant is not a “Consumer” within the meaning of Consumer Protection Act. No documents is produced to show that there was a deficiency in service or to show that there was a manufacturing defect in the vehicle. It is further contended that as and when the complainant had taken the vehicle for repairs and servicing the 2^nd Opposite Party has attended to it and rectified the same. The complainant was also cautioned that such problem occurred because of over loading and there is no manufacturing defect in the vehicle as per the instructions and guidelines provided by the Opposite Parties. The 1^st Opposite Party is a reputed Company in manufacturing of vehicle and vehicle would be delivered only after it under goes various tests as per the National and International standards in order to make it roadworthy. It is contended that though the 2^nd Opposite Party has specifically informed the complainant, orally as well as letters dated 13-7-2010, 9-8-2010 and 25-8-2010 that the vehicle which was left for service and checkup has been fully attended and rectified all the reported grievances and therefore asked him to take the vehicle back, the complainant did not choose to taken the vehicle back and prayed for dismissing the complaint. The 2^nd Opposite Party in his written version as almost reiterated the contention raised by the 1^st Opposite Party in his objection statement. Hence, prays to dismiss the complaint with costs.

         7.  After trial, the District Consumer Commission has allowed the complaint in part along with compensation and litigation expenses.  

8. Being aggrieved by the said order, the Opposite Parties and complainant has filed these Appeals before this Commission.

9. Heard.

10. Perused the appeal memo, the order passed by the District Consumer Commission, we noticed that, it is not in dispute that the 1^st Opposite Party is the manufacture of “Road Star LVM” and the 2^nd Opposite Party is the dealer of the said vehicle. It is also in not dispute that the complainant has purchased a light motor goods vehicle (LVM) bearing No.KA-15-6039 from the Opposite Parties for a sum of Rs.3,55,266/- on 26-10-2009. It is also not in dispute that after getting the vehicle, the complainant has insured the same for Rs.11,150/-. It is also in not dispute that the warranty period for the said vehicle was for one year and during the warranty period the complainant had took the vehicle for many complaints such as failure of fan belt, leakage, engine problem and breakage of clutch plate etc. It is also not in dispute that the said vehicle was with the Opposite Party No.2 till today.

11. The allegations of the complainant is that from day one, the vehicle was giving problems regarding the clutch plate, fan belt, engine etc. which was persisted again and again and the same was brought to the notice of the Opposite Parties. However, the Opposite Parties have not rectified the same and lastly fed up with the same problems, the complainant was towed the vehicle and left it with the 2^nd Opposite Party. The complainant further alleged that there is manufacturing defects in the said vehicle.  

12. Per-contra the Opposite Parties in their appeal memo contended that there is no cause of action to file the complaint, the commission has no jurisdiction to try the complaint, the complainant is not a consumer within the meaning of the Consumer Protection Act and also contended that when the complainant has taken the vehicle for repair/service, the 2^nd Opposite Party has attended promptly and rectified the same problems. Further Opposite Parties contended that the problems occurred to the vehicle not because of defects in the vehicle but due to over loading and mishandling the vehicle. Moreover when the complainant has left the vehicle to the Opposite Party No.2 for repair after rectifying the same the Opposite Parties have informed the complainant orally as well as through letter to take the vehicle back. However the complainant has not chosen to take back the vehicle and also there is no defect in the vehicle. The complainant has not produced any documents to show that there is manufacturing defect in the said vehicle. 

13. On perusal of the order passed by the District Commission, the District Commission has already discussed on the points of jurisdiction, maintainability and cause of action, we agree with the order passed by the District Commission. Hence once again discussion on the same points is not necessary. Further perusal of the order passed by the District Commission, we noticed that it is an evidence that Ex.P2 to 7 cash credit memo produced by the complainant shows that there was problem with fan belt, clutch plate, engine problems etc., and also it is evident that B1 to B7 job cards issued by the Opposite Party shows that there was problems in vehicle with fan belt, clutch plate, shock observer, gearing sound, oil leakage etc. This all disclosed that, the problems in the vehicle have been repeatedly. The Opposite Party has contended that the problems occurred in the said vehicle was not because of defect in the vehicle but due to over loading and mishandling the vehicle. However the Opposite Party has not produced single documents to show that the problems occurred in the vehicle due to over loading/mishandling, there is nothing on record that after every repairs the Opposite Parties have warned the complainant about the over loading. Moreover the Opposite Parties contended that the complainant has not produced any expert evidence regarding manufacturing defects in the vehicle. However, if the vehicle has given problems continuously and at every time it was for repair seems that the vehicle is defective. Many time visits to workshop by the complainant with the vehicle from the day one of the purchasing of the vehicle is sufficient to show interference that the vehicle is defective vehicle and hence no need to produce any expert opinion regarding that. If the Opposite Parties have denied that there was manufacturing defect in the vehicle, onus is shifted on them to prove that the vehicle has not manufacturing defects by producing expert evidence. It is duty of Opposite Parties to rectify the problems in the vehicle as alleged by the complainant. The Opposite Parties contended that when the complainant was towed the vehicle for repair last time after rectifying the defects they have intimated to the complainant orally and send letters to take back the vehicle but the complainant did not take back the vehicle and still the said vehicle is with the 2^nd Opposite Party.

14. Perused the order passed by the District Commission, we noticed that, the District Commission perused the photographs Ex.P15 (1 to 4) and hold that no repairs have been made by the Opposite Parties and the vehicle kept in roadworthy condition. Hence, considering the facts and discussion made here, we are of the opinion that, the vehicle sold by the 1^st Opposite Party is defective one and the complainant is entitled for relief. However, perused the order passed by the District Consumer Commission, we noticed that the District Commission has directed the Opposite Parties to remove all the defects in the vehicle and deliver the same. The said order passed by the District Commission is in the year 2015 and we are now in the year 2023, there are more than 8 years lapsed and the said vehicle is with the Opposite Party No.2 till today. Hence, it is not right to direct the Opposite Parties to remove the defects and deliver the same to the complainant which do not meet the ends of justice. Hence, the order passed by the District Commission required to be modified.  Accordingly, the appeal is allowed and we proceed to pass the following:-        

O R D E R

The Appeal Nos.786/2015 and 978/2014 filed by Appellant/Opposite Party Nos.1 and 2 are hereby dismissed.

The amount in deposit in appeal Nos.786/2015 and 978/2015 shall be transmitted to the District Consumer Commission to disburse the same to the complainant.

The Appeal No.885/2015 filed by the appellant/complainant is hereby disposed off.

The impugned order dated 22-7-2015 passed by the District Consumer Disputes Redressal Commission, Shimoga in remanded Complaint No.133/2015 is modified as under;

The Opposite Party No.1 and 2 are directed to refund the amount of Rs.3,55,266/- along with 6% interest per annum from the date when the complainant has filed the complaint earlier till realization.

  Further the Opposite Party Nos.1 and 2 are directed to pay compensation of Rs.50,000/- for deficiency in service and mental agony and litigation expenses of Rs.25,000/- to the complainant.  

Further the Opposite Party is directed to comply the above order within 30 days from the date of receipt of the order till realization.  

         Keep the original of this order in appeal No.786/2015 and copies thereof in connected files.

MEMBER                                                  JUDICIAL MEMBER

Jrk/-