1. Complainant's case is that he purchased Suzuki motorcycle GS- 125-CC, Registration No.GAM- 07-5109, Engine No.F473501366, Chassis No.501366 from respondent No.2 for a consideration of Rs.54,884/- which is being paid by him in installments. The said motorcycle from its very beginning, being defective, started giving trouble and off and on become inoperative for one fault or the other.
The trouble was reported to the respondents time and again but the fault could not be removed.
Respondents appeared and submitted that the case has been filed to defer the outstanding payment. The complainant was facilitated at different occasions; even than he has filed frivolous complaint which is barred by time and does not disclose any cause of action.
2. In order to prove his case complainant himself appeared as PW1, Arfan Javed as and Ashar Rasheed as PW2 & PW3 respectively. The following documents were produced by complainant:- Receipt of advance payment exhibit "PA", receipt of payment exhibit "PB", letter of respondent company exhibit "PC/1-3", Acknowledgment due exhibit "PD", receipt of dispatch of legal notice exhibit "PE","PF", expert report exhibit "PG" copy of job sheet mark "A" and copy of legal notice mark "B".
Whereas, on behalf of respondents Asad Saddiq appeared as RW1, Arshad Nazir as RW2 and Farooq Adil as RW3. Respondent also produced the following documents:- Job sheet exhibit "RA", Form II of Pakistan Standards Institution exhibit "RB" and certificate of Pakistan Standards and Quality Control Authority Standards Development Centre exhibit "RC".
3. I have heard the arguments and perused the record.
4. Learned counsel for the respondents raised an objection that the case is barred by time. The motorcycle in question was purchased on 26-10-07, it started trouble as per complainant from its very beginning but the case was filed on 16-01-09. The maximum period provided under section 28 of the Punjab Consumer Protection Act, 2005 is 30 days from arising of cause of action. I have given my anxious consideration to the arguments put forth on behalf of parties to this case. Before proceedings further, it would not be out of place to reproduce the relevant provision of subsection 4 of section 28 of Punjab Consumer Protection Act, 2005.
"A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services".
5. I am of the view that if case of the complainant is considered falling under subsection 4 where the maximum period for filing the claim has been mentioned as 30 days from arising of the cause of action, even then, the case is not out of time. The term "cause of action" has not been defined in the Punjab Consumer Protection Act, 2005. So much so this term even has not been defined in the Code of Civil Procedure. However, according to one authoritative judgment, cause of action means bundle of facts necessitating the institution of case. After all, cause of action is not some thing irreversible fixed or immutable or static. It has often been held by the law Courts that some cause of action are re-occurring causes of action i.e which accrues on the accrual of resistance from the other side. In the context of cause of action concerning immovable property it has been repeatedly held that every fresh denial of right from the side of defendant furnishes the plaintiff with a fresh cause of action. It has also been held time and again that whenever adverse entry in record of right i.e "Register Haqdaran Zameen" or "Jama Bandi", furnishes the person against whom that entry had been made a fresh cause of action. Considered from this angel it can be safely held that whereas the concerned consumer or user of the defective product feels dissatisfied with its working and starts grumbling about its quality or use worthiness, a fresh cause of action accrues in favour of the complainant. That being so, if the equipment in question is defective and creating problems for the user, whenever such problem confronts him on daily basis, there can be no denying the fact that on each such occasion a reoccurring cause of action arises in his favour for presentation of claim under the legal provision cited above.
6. Muhammad Akram while appearing as PW1 stated that motorcycle in question was purchased from respondent which remained out of order from its very beginning. Every time complaint was lodged with respondent No.2 who tried to set right the fault. During the course of visit of workshop a mechanic namely Arshad, an employee of respondent No.2 disclosed that the defect in the motorcycle is irreparable and cannot be removed. This fact was brought into the knowledge of Manager of respondent No.2 who extended threats, consequently mandatory legal notice was served and the complaint was filed. In the cross examination PW1 stated that the motorcycle in question has been used upto 6000/7000 Km. On account of some defects in the engine it automatically stops functioning. He had once left the motorcycle with the company for 4 days.
7. Asad Saddiqe appeared as RW1 and stated that complainant purchased the above said motorcycle in question in October, 2007 from the respondent No.2 who has paid the total price of the motorcycle. He has done the tuning of the motorcycle at workshop which is perfectly all right and free from any defect. RW2 is an electrician/Mechanic. As per his statement he is incharge in the workshop of respondent No.2. RW3 narrated about over all profile of Suzuki Motorcycle Company. The most important witness in this case is PW3 Ashar Rasheed who on the direction of the Court inspected the motorcycle in question and submitted his report exhibit "PG". He is an Instructor in Auto Mechanic at Govt. Apprentices Training Center Gujranwala. According to this PW he has observed 4 numbers of faults viz; a defect in design of carburettor which is causing trouble in starting the engine which creates extra ordinary noise. The engine consumes extra oil and all these fault are due to substandard parts. He also observed leakage of oil in the front shock which can be removed by repair. The speedo meter was found non functioning. In his cross examination this PW clarified that he is imparting education for the last 6 years in Auto Mechanic field. He is Associate Diploma Engineer and has qualified Instructor course as well. Apart from, he is qualified in supervision and chassis from training Institute Islamabad established by Japan Govt. and also having practical experience for 14 years in the Auto filed. He has carried on a thorough inspection of motorcycle in question he detected designing fault in carburetor. Although the quantity of engine oil was found less then the required limit but the same was not fatal for the engine. The carburettor is unable to provide air fuel mixture in the required quantity to the engine. The compression level of the motorcycle in question when checked through a gauge was found 4 Kg per Sq.cm instead of 8 Kg per Sq.cm.
8. After going through the report and statement of this technical expert the complaint about the motorcycle in question is found genuine. PW3 cannot be doubted from any angle either by his integrity or expertise. Keeping in view the statement of the RW3 and the document produced by him showing that all the components of the motorcycle in question are manufactured by the same standard through computerized machinery, the real test which can be considered about fitness of the motorcycle is physical operation in the filed. RW3 himself has admitted that he has not inspected the motorcycle in question. According to this PW every motorcycle at manufacturing plant is plied upto 1 Km which is not sufficient to point out the defects. Manufacturing of parts by computerized machinery is not a concrete evidence to rule out the existence of defect during the operation in the filed.
9. From the forgoing discussion and evidence, I am of the consideration opinion that motorcycle in question is causing problem due to inherent defect of the engine, therefore, respondents are directed to replace the engine of the motorcycle in question and pay Rs.1000/- as litigation charges and Rs.1000/- expert fee to the complainant within a period of one month of passing of this judgment. The complaint is allowed in the above said terms. File be consigned to record room after its due completion.