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PETITIONER: TATA ENGINEERING & LOCOMOTIVE CO. LTD. & ANR.

       Vs.

RESPONDENT: GAJANAN Y. MANDREKAR

DATE OF JUDGMENT:       05/05/1997

BENCH: K. RAMASWAMY, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted. we have heard the counsel on both sides.      This appeal  by special  leave arises  from the  order, made on  September 23,  1996 passed by the National Consumer Disputes Redressal Commission in F.A. No. 784/94.      The respondent  had  booked  commercial  vehicle,  more commonly known  as a ’Tipper Truck’ with registration No. SK 1210/b/36 on  May 7,  1991. He  purchased the  vehicle after securing loans  from a nationalised Bank on usual commercial rate of  interest. After  running the vehicle as driver-cum- owner for  9000 Kms.  it was  found that the tyres were worn out completely,  front axil  pins of  the vehicle  were  not fixed properly; at a speed of 40 Kms. per hour the vibration of the  vehicle (empty)  was very  high  as  the  cabin  was completely loose  etc. He  mentioned these  defects  in  his letter   dated    March   10,1992,   after   eight   months. Subsequently,  he  reiterated  the  same  in  his  different letters  addressed   to  the  agent,  through  whom  he  had purchased the vehicle. Finally, by letter dated May 2, 1992, after intimating  that in  spite of  running the vehicle for 18000 to  18500 kms.,  despite repairs, the vehicle continue to give  the same  trouble. In  spite  of  the  Warranty  of Service, the  trouble was  not done  away.  Accordingly,  he filed a  complaint with the State commission. The commission after   considering the  evidence and hearing the counsel on both sides,  found that  the appellant  was liable  to pay a total amount of Rs. 4,81,132-17 with interest at the rate of 18% per  annum w.e.f.  July 28,1992.  That was  confirmed on appeal by  the National  Commission.  thus  this  appeal  by special leave.      Shri F.S. Nariman, learned senior counsel appearing for the appellant  contends that the appellant is not so much on the quantification  of the  damages awarded  in  this  case; rather, they  want to  vindicate the  principle on which the damages are awarded in such type of complaints. According to him, the  complaint was laid after 8 months from the date of the delivery; that too after the vehicle was used to cover a distance of  18000 to  18500 Kms.; the complaint was laid in August 1992. When the Commissioner appointed gave his report on April  10,1993, the vehicle had cover a distance of 65000

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kms. The  State commission  passed the  order  on  September 24,1994 by  which date  a  further  distance  of  more  than another 25000 to 30000 kms. would have been run. Under these circumstances,  proportionate   deduction  for  use  of  the vehicle would  have been  run.  under  these  circumstances, proportionate deduction  for use  of the  Vehicle would have been run. Under these circumstances, proportionate deduction for use  of the vehicle would have been given. We find force in the  contention. It  is not  the case that during the sai period the vehicle was kept used. When the vehicle was being used with  the same  defects as pointed out, necessarily the purchaser is  required to  be compensated for not delivering the vehicle  in good  condition as  per the  warranty  after deduction towards  the use  of the  vehicle. In  view of the facts  and   circumstances,  we  think  that  1/3rd  of  the compensation awarded  by  the  Commission  may  by  deducted towards the  user of the vehicle for the period in question. For the  rest of  the amount, the order of the Commission is confirmed .      The appeal is accordingly allowed in part. No costs.