1. THIS appeal has been filed against the order dated 30.3.92 of District Forum I by which the complaint of the complainant has been dismissed.
2. BRIEFLY the facts are that the complainant purchased a Bajaj Super Scooter on 3.1.90 from the respondent, at New Delhi. It is alleged that it started giving trouble from the very inception as it had certain manufacturing defects. Those defects could not be rectified by the Engineers of the respondent. The main defect was that the alignment of the scooter was not proper on account of which the rear tyre continued to wear off from the corners. He, consequently, filed a complaint for replacement of the scooter by a new scooter.
The complaint was contested by the respondent. They pleaded that the scooter was checked in the work shop various times and it was found in perfect condition.
The learned District Forum during the pendency of the complaint directed the respondent to replace the chassis and one tyre. Accordingly the respondent replaced the same. However, the complainant was still not satisfied and alleged that the said defect persisted even after the chassis had been changed.
3. THE learned District Forum held that the complainant was not entitled to any further relief. Consequently, it dismissed the complaint. THE complainant has come up in appeal to the State Commission.
The contention of the learned counsel for the appellant is that in spite of the chassis and the tyre having been changed, the defect of the scooter persists and, therefore, he is entitled to a new scooter. On the other hand the learned Counsel for the respondent has submitted that the scooter was repaired to the satisfaction of the complainant and he after trial of the scooter issued a certificate, that he was satisfied with its performance. He further submits that the scooter met with an accident and it is possible that after that accident it developed some such defect.
4. WE have duly considered the arguments of the learned Counsel. The complainant to support his case has referred to, two reports dated 26.9.91 and 6.1,92 of Shri Rabinder Singh and Shri Inderjit Singh, Surveyors respectively and his own affidavit dated 3rd March, 1992. Shri Rabinder Singh in his report dated 26.9.91 stated that the rear tyre of the scooter was wearing off the right corner. Similar certificate was given by Shri Inderjit Singh. The appellant in his affidavit dated 3.1.92 supported the version of the surveyors.
The respondent referred to the written submissions filed before the District Forum wherein some damage to the scooter has been mentioned. A reference has also been made to the job card maintained by the respondent. After going through the aforesaid documents we still feel that the version of the complainant appears to be correct. The allegation that the wearing off of the rear tyre was not proper, is being made by the complainant from the date of purchase of the scooter. It is clear from the documents referred to by the Counsel for the appellant that even after the repairs had been carried out by the respondent the defect persisted.
The version of the respondent that the scooter met with an accident cannot be accepted. If the scooter had met with an accident, a report would have been made to the police. However, no such report has been produced before us. It is common knowledge that in Delhi at the parking places the scooters and other vehicles are some time damaged by the other persons at the time of parking their vehicles. It appears that some scratches were caused on the scooter in such a place.
5. THE complainant, however, as already been mentioned has been pointing out the defect regarding its alignment since the date of purchase. THE Certificate was given by the complainant to the respondent after trial of the scooter for a short time. In such a short time it is not possible to find out whether the wearing off of the tyre or its alignment was proper or not. One requires sufficient time to find out such defects. THErefore, the certificate is not of much value to the appellant.
6. FACED with this situation the learned Counsel for the respondent sought to argue that the complainant does not fall within the definition of the word ''consumer'' as defined in the Consumer Protection Act, as the scooter had been booked with the respondent in the name of Mrs. Padma Kalra. Therefore, the complainant is not entitled to file the complaint. This argument was not raised by them before the District Forum. Therefore, the appellant cannot be allowed to raise it in appeal. However, we have examined it but do not find any merit therein. The word ''consumer'' has been defined in section 2(1)(b) of the Act, according to which if a person uses the goods with the approval of the person who bought them for consideration, or he avails of the services with the approval of the person who hired them, he is a consumer. In the present case, the scooter has been in possession of the complainant from the date of purchase and he has been using and taking it to the respondent for repairs and service. No objection was raised by the respondent at any time that he was not entitled to use it or get the repairs done. All the circumstances show that the complainant has been using it with approval of Mrs. Kalra. Therefore, he is a ''consumer'' as defined in the Act.
The learned Counsel for the complainant has next argued that the complainant is entitled to replacement of the scooter. In support of his contention he has placed reliance on the observations of the National Commission in Abhaya Kumar Panda v. M/s. Bajaj Auto Limited I (1992) CPJ 88 (National Commission). We have given our thoughtful consideration to the argument It is not disputed that the appellant has been using the scooter for the last more than two years and the scooter has done about 15 thousand kilometers. In case the defect was patent, the appellant should not have used the scooter. In the aforesaid circumstances we are not inclined to direct the respondent to replace the scooter as prayed for by him. The facts in Abhaya Kumar Panda case (supra) are different. In that case the defect was found to be a manufacturing defect. The scooter and the trailer in that case remained parked in a garage till the decision of the State Commission. Thus the observations in that case would not apply to the present case.
For the aforesaid reasons we accept the appeal and direct the respondent to rectify the defect of the scooter within a period of one month. We also extend the warranty of the scooter for a period of one year from the date of the order. It will be the duty of the respondent to rectify the defect of alignment and wearing off of the rear tyre of the scooter. However, in the circumstances of the case we make no order as to cost.
7. IN case the respondent fail to carry out the order of the Commission, action shall be taken against them under Section 27 of the Act. Appeal allowed.
