MUHAMMAD FARRUKH IRFAN KHAN, J. --- Through this appeal the appellant calls in question validity of impugned judgment dated 29.06.2011 passed by the learned District Consumer Court, Gujranwala whereby the said Court dismissed the complaint of the appellant under Section 25 of the Punjab Consumer Protection Act, 2005 filed by the appellant against the respondents.
2. Facts of the case in brief are that the Appellant filed a complaint against the respondents alleging therein that he obtained Auto Rickshaw manufactured by respondent No. 3 Master Motorcycle Private Ltd. After availing loan facility from respondent No. 1 National Bank of Pakistan.
According to the complaint the Appellant observed that the said rickshaw which was equipped with CNG technology is consuming too much petrol and also its different parts were not working properly. The appellant made a complaint to the dealer who got it repaired but the defect could not be removed, therefore, he prayed for recovery of advance money of Rs. 16,700/- expenditure incurred on route permit and token tax Rs. 7500/-, price of petrol consumed Rs. 7000/- and for the return of signed blank cheque from respondent Nos. I & 2 and for not recovering the remaining bank loan.
3. Respondents contested the said complaint by filing written reply alleging therein that there was no innocent mechanical defect in the rickshaw and the appellant in order to avoid payment of the instalments of loan has filed false and vexatious complaint.
4. After recording of evidence and hearing the parties the learned Consumer Court vide impugned judgment dated 29.06.2011 rejected the complaint. Hence, this appeal.
5. Learned counsel for the appellant submits that the judgment of the learned Trial Court is a result of mis-reading and non-reading of evidence; that the conclusion drawn by the learned Trial Court is based on surmises and conjectures; that the expert who was deputed by the learned Trial Court for inspection of auto rickshaw has categorically stated that the air filter was not equipped which was major manufacturing fault and shortens the life of the engine, causing trouble on CNG fuel and that CNG regulator Solenoid value is faulty causing difficulty in starting; that the impugned judgment is contrary to the material available on the record.
6. I have heard the arguments advanced by learned counsel for the appellant and gone through the record.
7. The complaint of the appellant was that the auto rickshaw was consuming too much petrol and its parts were also not working properly. The expert who was deputed by the learned Trial Court for inspection of said rickshaw while appearing in the witness-box as CW1 got exhibited his report as CW1/1. According to his report the said rickshaw was not equipped with the air filter which was major manufacturing defect. According to Black's Law Dictionary 8th Edition "Manufacturing defect" means -An imperfection in a product that departs from its intended design even though all possible care was exercised in its assembly." According to Section 4 of the Punjab Consumer Act, 2005 a manufacturer is liable to a consumer for damages, inter alia,, on the following grounds:--- "(a) It is defective in construction or composition as provided in Section 5;
(b) It is defective in design as provided in Section 6;
(c) (d) Sections 5 & 6 of the Act ibid provides as under:- "5. Defective In construction or composition.- A produce shall be defective in construction or composition if,' at the time of produce was manufactured, a material deviation was made from the manufacturer's own specifications, whether known to the consumer or not."
6. Defective in design.- (1) A produce shall be defective in design if, at the time the product left its manufacturer's control:-
(a) there existed an alternative design for the produce that was capable of preventing the damage to a consumer; or
(b) the likelihood and gravity of damage outweighed the burden on the manufacturer of adopting such alternative design and any adverse effect of such alternative design on the utility of the product.
(2) When the manufacturer has used reasonable care to provide adequate warning to the users or handlers of the product, it shall be considered in evaluating the likelihood of damage arising from the design of a product."
Grievance of the present appellant does not attract any of the aforesaid provision of law making the manufacturer liable for damages. Non-availability of air filter cannot be termed as manufacturing defect. An air filter is a replaceable in an engine and has specified life span. It has to be replaced after exhausting its life expectancy. Similarly, a "solenoid" which is used for producing magnetic field when an electric current is passed through it, and is generally used to operate a switch, relay, circuit breaker etc., is also a part which may become defective CLR. through rough or improper use, has a definite life span and replaced to use the equipment or machine, being auto rickshaw here, to its full utility, as such, there are not such defects to be said to cause any effect to the basic design or material deviation from the manufacturer's own specification and this fact has also been admitted by CW1 during his cross-examination on which the learned consumer Court has relied.
8. Another aspect on the basis of which learned Consumer Court dismissed the complaint is that the appellant did not get the disputed auto rickshaw inspect by the Motor Vehicle Examiner or some other expert of similar qualification to support his allegation regarding inherent mechanical defect rather he adopted irresponsible attitude by leaving the auto rickshaw at the show room of respondent No. 4 without obtaining any receipt or acknowledgement thereof. Moreover, there is no evidence of motor mechanic or an independent person supporting the allegation of mal- functioning of the auto rickshaw. This aspect of the matter shows to this Court that the appellant after having apparently made an ill-informed choice of the auto rickshaw wanted to get rid of it and has tried to use the Consumer Protection Act, 2005 as a tool to obtain back the money invested by him and wriggle out of his contractual relationship with respondent No. 1 for the loan that has been extended on his behalf respondent No. 3 manufacturer of the auto rickshaw. It is to be noted that the Consumer Protection Act, 2005 is not to be invoked where a consumer makes a wrong or ill-advised choice of purchasing of a product or service which he may not like later or may not meet his aesthetic requirement and which is otherwise non-defective, is properly designed and has no inherent mechanical defect in it. Unfortunately, the provision for award of damages of frivolous or vexatious complaints is quite minimal (Section 35) in the law, therefore, in order to check the increase of frivolous litigation abusing the provisions of the Consumer Protection Act, 2005, the Government of Punjab is well-advised to amend Section 35 appropriately.
9. In view of the above discussion, it is quite clear that there is no inherent manufacturing defect and/or deficiency in the manufacturing or design the auto rickshaw on the basis of lock of air filler or fault in CNG regulator solenoid valve which would give cause of action to the appellant as the alleged defects can be overcome by simply replacing the said parts. The appellant could not produce any cogent and reliable evidence from which it could be inferred that the auto rickshaw contained any manufacturing defect which has caused him damage. The defects pointed out by CW1 are of minor nature and can occur due to negligence/rough use as well. Learned counsel for the appellant is unable to point out any illegality or irregularity in the impugned judgment.
10. Resultantly, this appeal having no substance stand dismissed in-limine. .