National Consumer Disputes Redressal Commission, New Delhi

Mrs Vineeta Rai, Presiding Member and Vinay Kumar, Member

Escorts Ltd - Petitioner

Versus

K V Jayarajan & AnrRespondents

Revision Petition No.2867 of 2013                                     Decided on 13.2.2014

(Against the order dated 24.4.2013 in Appeal No.595/2013 of the Kerala State Consumer Disputes Redressal Commission)

Consumer Protection Act, 1986 - Section 21(b) - Manufacturing defect in tractor – Complaint - Allowed by District Forum partly – Appeal - Allowed by State Commission - Revision petition by OP-2 challenging order of State Commission on ground that possession of tractor was not with the Petitioner, it was actually brought to the workshop of the dealer, Malabar Motors/Respondent No. 2 in the present proceedings - Case of Petitioner/Escorts Ltd that qua Malabar Motors, i.e. OP-1, matter had already acquired finality in terms of the decision of National Commission in Revision Petition filed by Respondent No. 2/OP-1, Malabar Motors -  National Commission had categorically held that tractor was sent to OP-1/ Malabar Motors for repairs and was thereafter lying with it – Hence, held that question of joint and several liability being fixed on revision Petitioner, Escorts Ltd did not arise - Impugned order set aside to the extent of the liability fixed on Petitioner, Escorts Ltd. (Para 7) 

Result: Revision Petition allowed. 

Order

Vinay Kumar, Member - Revision Petition No.2867of 2013 has been filed by Escorts Ltd, who had been arrayed as OP-2 in the consumer complaint before the District Forum. The consumer dispute arose out of purchase of a tractor by Respondent No. 1/Complainant on 16.2.2007. The tractor was manufactured by the revision Petitioner/OP-2 and sold by Respondent No. 2/OP-1 - Malabar Motors. In the background of alleged frequent breakdowns and repeated repairs, the consumer complaint was filed with a prayer seeking replacement of the tractor with compensation. 

2.The complaint, on remand from the State Commission, was decided by the District Forum on 31.3.2012. The District Forum allowed the complaint partly and directed the two opposite parties, jointly and severally to pay a compensation of Rs. 50,000 together with cost of Rs. 2,000. The OPs did not challenge the award made by the District Forum. The appeal filed by the Complainant against the above mentioned order of the District Forum, was decided by Kerala State Consumer Disputes Redressal Commission on 24.4.2013. The State Commission allowed the appeal and directed the two Respondents/OPs to refund the cost of the vehicle with 9% interest together with compensation and cost. 

3.M/s Escorts Ltd, manufacturer of the tractor and OP-2 in the complaint before the District Forum, has filed this revision petition. It has challenged the order of the State Commission on the ground that the possession of the tractor is not with the Petitioner; it was actually brought to the workshop of the dealer, Malabar Motors/Respondent No. 2 in the present proceedings. As per the revision petition, the letter dated 8.1.2008 advising the Complainant to collect the tractor was issued by Respondent No. 2/Malabar Motors and not by the revision Petitioner/manufacturer.

4.We have heard Mr Rahul Malhotra, Advocate on behalf of the Petitioner/Escorts Ltd, Rajesh Vijayendran, Advocate for Respondent No. 1/Complainant and Siji Malayil, Advocate, for Respondent No. 2/OP-1, i.e. Malabar Motors. During the course of arguments, our attention was drawn to the following observation of the State Commission in the impugned order: 

“It is clear from the letter dated 8.1.2008 issued by OP-1 to the Complainant that the vehicle was not taken back by the appellant. Under the circumstances, the appointment of the expert Commissioner could not be taken out by the Complainant as the vehicle was in the custody of the Respondent. The adverse inference can be taken in this case, as the burden of proof and the custody of the vehicle shifted to the side of opposite party. It is a relevant factor to be considered and only the course open to us is to take adverse inference that the vehicle is in the custody of opposite party. Now coming to the statement of sale of the vehicle to one Mr Natesan has come out in the proof affidavit filed by the opposite parties. No such contention was raised by the opposite parties at the time of filing version. The sale agreement was photocopy. It was deposed in evidence by DW-1 that he had entered into the agreement on 3rd September whereas the agreement was executed only on 23rd September. The agreement was signed by two witnesses but they were not examined to prove the case of the opposite party. It is also to be pointed out that original of the agreement was not produced by the opposite party and this cannot be taken into evidence. The Respondent had not proved in evidence that the vehicle was returned to the appellant nor the sale of the tractor proved properly. We are of the considered view that the Complainant has not taken delivery of the vehicle and he is to be compensated appropriately.”

5.In this behalf, it was strongly contended by the counsel for Respondent/Complainant that the tractor remains in the possession of the dealer/OP-1. The certificate of registration of this tractor also continues in the name of the Complainant. 

6.At this stage, our attention was drawn by learned counsel for the manufacturer/present Revision Petitioner, that on this issue, a finding has already been reached by the National Commission in Revision Petition No. 2741 of 2013 filed by OP-1 / Malabar Motors. On perusal of the same, we find that the same impugned order, passed by the Karnataka State Commission in FA No. 595/2012, was under challenge before the National Commission. The revision petition was dismissed by National Commission on 5.9.2013 holding that the impugned order does not suffer from any illegality or material irregularity, which could justify intervention of this Commission in exercise of power under Section 21(b). While doing so, this Commission has also observed that : 

“16.  Petitioner has nowhere taken such plea in its written statement that Respondent No. 1 has sold the tractor in question to third party. This plea of the Petitioner at revision stage cannot be looked into at all. It is not in dispute that tractor in question was sent for repairs for a number of times to the Petitioner, as defects were there. Moreover, after alleged repairs, the tractor in question is lying with the Petitioner.”

7.Learned counsel for the Petitioner/Escorts Ltd argued that qua Malabar Motors, i.e. OP-1, the matter has already acquired finality in terms of the above decision of this Commission in Revision Petition No.2741 of 2013 filed by Respondent No. 2 / OP-1, Malabar Motors. This Commission has categorically held that the tractor was sent to OP-1 /Malabar Motors for repairs and was thereafter lying with it. He further argued that for the same reason, no liability would lie on Escorts Ltd i.e, OP-2. 

In the above background, we are of the view that the question of joint and several liability being fixed on the present revision Petitioner, Escorts Ltd does not arise. Consequently, this Revision Petition No. 2867 of 2013 is allowed. The impugned order is set aside to the extent of the liability fixed on the Petitioner, Escorts Ltd. No order as to costs.

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