Research › Search › Judgment

Chhattisgarh High Court · body

2004 DIGILAW 165 (CHH)

PROJECT AUTOMOBILES v. VIJAY PRAKASH AGRAWAL

2004-09-06

R.S.AWASTHI, VEENA MISRA

body2004
ORDER Veena Misra, J. 1. This appeal is directed against the order dated 13-1-2003 passed by the District Consumer Disputes Redressal Forum, Durg (hereinafter referred to as District Forum' for short) in complaint case No. 31/98 whereby the complaint was allowed. 2. The facts not presently in dispute are that the appellant is the dealer of the respondent No.2 and it was through the appellant that the respondent no. l/complainant had purchased Fiat car on 2-5-95 for a valuable consideration of Rs. 1,87,600/-. The aforesaid model of the aforesaid car was Premier Padmini-S 1 and it bore the Engine No. 6263, Chassis no. P.A. 610542, and registration No. M.P. 24 G-1441. It is also not in dispute that certain defects developed in the aforesaid vehicle during warranty period. 3. Brief facts as narrated in the complaint are that quality of the vehicle purchased by the complainant from the appellant was not standard and there were several defects in the vehicle and service provided by the dealer was also not satisfactory. It is further averred that despite repeated requests the defects were not rectified. The complainant had also informed the manufacturer and the dealer in writing but to no avail. The complainant had claimed for replacement of the defective vehicle with a new one or refund of value of the car i.e. Rs. 1,87,000/- together with interest @ 18% per annum. The complainant had also filed various documents together with the complaint. The complainant had filed his own affidavit and also the affidavit of Shri Nikhilesh Garg, Mechanical Engineer in support of his complaint. 4. Appellant opposite party No. 1 dealer resisted the claim of the complainant and had raised several preliminary objections. It was averred that LIC is a commercial organisation and the vehicle was purchased for increasing the business of the said corporation hence the complaint was not maintainable. It was further averred that as the said vehicle was hypothecated in favour of the LIC, the LIC was a necessary party and as such the complaint was liable to be dismissed for non-jointer of necessary party. It was also averred that the matter required detailed evidence and cannot be decided in summary proceedings by the consumer for a. The appellant dealer had also alleged in the reply that the complaint has been filed on 14-7-97 whereas the warranty had expired on 1-5-96, hence the complaint is not maintainable. It was also averred that the matter required detailed evidence and cannot be decided in summary proceedings by the consumer for a. The appellant dealer had also alleged in the reply that the complaint has been filed on 14-7-97 whereas the warranty had expired on 1-5-96, hence the complaint is not maintainable. It was further averred in reply that the dealer had provided service to the complainant whenever the vehicle was brought to him for rectification of defects. It was also contended in reply that the opposite party no. 1 was only the dealer and is not responsible for any manufacturing defects in the vehicle. It was further contended that the complainant was not entitled to claim any of the relief (s). 5. In their reply filed before the District Forum the opposite party no. 2/- manufacturer had alleged that the complaint was time barred and had further averred that number of the technical allegations made by the complainant cannot be decided in summary jurisdiction. It was denied by the manufacturer that there was any manufacturing defects in the said vehicle and it was further alleged that the complainant was entitled to warranty under conditions as stated in the warranty card, since the period of warranty has expired the complainant is not entitled to the benefits of warranty. The defects as alleged in the complaint were only minor defects and could be rectified. It was also alleged that the agreement of sale was entered into between the complainant and the dealer and there was no privity of contract betweens the opposite party no. 2 and the complainant, as such the manufacturer was not liable. It was further averred that the relationship between the opposite party no. I and 2 is on principal to principal basis, hence opposite party no. 2 was not liable. It was also alleged that the complainant had not raised any specific allegation of negligence against the opposite party no. 2. It was further averred that it will be clear from the job cards and satisfaction notes that the complainant has availed the benefits of warranty and the dealer repaired the vehicle to the satisfaction of the complainant during warranty period. The complaint is vexatious and has been filed as an after thought and the, complainant is not entitled to the relief (s) claimed by him. The complaint is vexatious and has been filed as an after thought and the, complainant is not entitled to the relief (s) claimed by him. An affidavit of Sri C.P. Udawant was filed in support of the reply filed by the opposite party no. 2. 6. The learned District Forum passed a very detailed and reasoned order and directed the opposite party, jointly and severally to rectify the defects in the aforesaid car to the satisfaction of the complainant within a period of two months or in case the manufacturing defects in the car are not so rectified to refund the price of the vehicle Rs. 1,87,000/- with interest @ 6% per annum. The learned Distt. Forum had further directed the opposite parties to pay Rs. 10,000/- towards the sum spent by the complainant towards repair of the vehicle; Rs. 5,000/- towards mental suffering and Rs. 1000/- towards costs of proceedings. 7. It is against the aforesaid order of the Distt. Forum dated 13-12003 that the dealer/appellant has come up in appeal. 8. The learned counsel for the appellant assailed the impugned order and urged that learned Distt. Forum has manifestly erred in holding the complainant to be a consumer in view of the fact that the vehicle was purchased for commercial purpose. It was further contended that the vehicle was hypothecated in favour the LIC and the learned Distt. Forum has. erred in not dismissing the complaint for non-jointer of pro per parties. It was further contended that Shri Nikhilesh Jain, who has given his report regarding defects in the vehicle and has also filed his affidavit is an employee of the LIC and is only a surveyor and loss assessor as has been mentioned in his letter head, hence the report and affidavit have no worth in the eye of law. It is further contended that the appellant has not committed any deficiency and had repaired the vehicle in question to the satisfaction of the complainant whenever the same was brought to him. The impugned order was further challenged on the ground that the learned Distt. Forum has erred in holding the opposite parties No. 1 & 2 jointly and severally liable. The learned counsel for the appellant vehemently tried to demonstrate that the dealer is not at all liable because manufacturing defects cannot be attributed to the dealer. The impugned order was further challenged on the ground that the learned Distt. Forum has erred in holding the opposite parties No. 1 & 2 jointly and severally liable. The learned counsel for the appellant vehemently tried to demonstrate that the dealer is not at all liable because manufacturing defects cannot be attributed to the dealer. Only the manufacturer is to be held liable for any such defects. 9. The learned counsel for the complainant/respondent no. 1 contended that the complainant had to suffer a lot due to the defective car manufactured by the respondent no. 2 being sold to him by the appellant. The vehicle had inherent/manufacturing defects and started giving trouble from the very beginning. In support of his contention the learned counsel for the complainant/respondent no. 1 drew our attention to various job cards placed by him on record to demonstrate that the vehicle was taken to the dealer for repair of speedometer on 5-5-95 i.e. only after 3 days of the purchase or the vehicle on 2-5-95. By means of various job cards the learned counsel tried to demonstrate that various defects developed in the said car and he had to visit the dealer frequently for rectification of the same but defects continued to crop up during the entire period of warranty and even thereafter but after the warranty period was over the attitude of the appellant had changed. The complainant had to spend a huge sum in repairs of the vehicle but the 'defects could not be rectified. He further contended that the report of the expert Sri Nikhilesh Garg is also on record. Sri Nikhilesh Garg is a Mechanical Engineer and is competent to give such report. The learned counsel for the respondent no. 1 of the complainant further contended that the complainant had to suffer a lot of harassment and mental tension and further contended that the order of the learned Distt. Forum is just and proper and there is no need of interference with the same. 10. It is observed that the opposite party no. 2 manufacturer had filed reply before the Distt. Forum but remained absent and thereafter and the impugned order was passed in their absence. The .respondent no. 2/ manufacturer did not appear before us despite service of notice but has sent two letters and affidavit to the effect that respondent no. 10. It is observed that the opposite party no. 2 manufacturer had filed reply before the Distt. Forum but remained absent and thereafter and the impugned order was passed in their absence. The .respondent no. 2/ manufacturer did not appear before us despite service of notice but has sent two letters and affidavit to the effect that respondent no. 2 has been misjoined in the proceedings and has not received the booking amount of Rs. 25.000/- from the complainant and there is no privity of contract. It is further stated in the affidavit that the said amount has been paid by the respondent no. 1 to PAL-Peugeot Ltd. but Premier Automobiles Ltd., is a different legal entity. It is further stated that reply would have been filed had the notice intimating the date of hearing would have been received from the Distt. Forum. 11. Heard the learned counsel for the appellant and respondent no. 1, perused the record including affidavits filed by parties in support of their respective stands. 12. First question to be considered by us is whether the complainant is a 'consumer' under the Consumer Protection Act, 1986 ? We have observed that the complainant had purchased the vehicle for valuable consideration and the same was registered in his own name. The vehicle cannot be said to have been purchased for "commercial purpose" simply because the complainant used the vehicle while going for official work as has been alleged by the appellant. There is no allegation that the vehicle in question was being used as taxi. There is no doubt that the complainant is a "consumer" under the Act. There is nothing on record to indicate that the vehicle was purchased by the LIC for commercial purpose as the appellant has tried to suggest. The appellant relied on Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. & anr. 1. It appears that the foresaid case relates to a matter where some machinery was purchased for the Diagnostic Centre and the question was whether the said machinery was purchased for "commercial purpose" or not. The decision in the aforesaid case is not applicable to the facts of the instant appeal. We are of the opinion that the learned Distt. Forum rightly held that the complainant/respondent no. 1 is the consumer of the opposite parties. The finding of the learned Distt. The decision in the aforesaid case is not applicable to the facts of the instant appeal. We are of the opinion that the learned Distt. Forum rightly held that the complainant/respondent no. 1 is the consumer of the opposite parties. The finding of the learned Distt. Forum in this regard is reasoned and very well founded and no interference therein is called for and the same is affirmed. 13. The next to be considered is - whether the LIC was a necessary party? on perusal of record, it is observed that the LIC had no role to play in the transaction of sale and purchase of the vehicle in question. The complainant was an employee of the LIC and had obtained loan from the LIC for purchasing the vehicle, hence the vehicle was hypothecated in its favour. Simply because the vehicle is hypothecated in favour of LIC is no ground to implead the LIC as a party to the proceedings. We are of the opinion that LIC is neither a necessary nor a proper party in the matter. 14. The next question is to be considered is - whether there was any defect in goods or deficiency in service on part of the opposite parties? The complainant had made allegations in the complaint regarding the car not being standard. It was also alleged that there were several defects in the vehicle and service provided by the dealer was also not satisfactory. It was further averred that despite repeated requests the defects were not properly rectified. The complainant had also informed the manufacturer and the dealer in writing but to no avail. It is observed that the complaint is in prescribed form and a separate note, giving details of the defects that cropped up in the aforesaid vehicle was also filed before the Distt. Forum. It is mentioned in the said note that the vehicle was delivered without pre-delivery inspection. Milometre was not working. Colour was not up to the mark. Maximum speed of the vehicle was not more than 90-95 Kms. per hour whereas the vehicle was supposed to run up to the maximum speed of 140 Kms. Per hour. Average was very low. The carburetor was changed but the results were not satisfactory. Change of pressure plate and clutch plate also did not render satisfactory results. Tie-rod end was also bank and was also changed. per hour whereas the vehicle was supposed to run up to the maximum speed of 140 Kms. Per hour. Average was very low. The carburetor was changed but the results were not satisfactory. Change of pressure plate and clutch plate also did not render satisfactory results. Tie-rod end was also bank and was also changed. It was also specifically stated that the complainant continuously complained of smell of petrol and ultimately leakage was found in the petrol tank of the vehicle. Defects were found in the door, water cooling system and the horn. It is observed that all the aforesaid defects developed during the warranty period of one year. The defects continued to develop even after the expiration of warranty period. It is also stated that the complainant made repeated requests to the opposite parties during the warranty period for replacing the defective car but they simply tried to delay the matter and always told that they will repair the vehicle. After expiry of the warranty period they changed their colour. The complainant has also placed various job cards on record. The defects mentioned in the aforesaid note are well supported by the repair order, instructions mentioned in job cards dated 5-5-95, 26-6-95, 9-8-95, 4-10-15, 4-11-95, 7-11-95,9-2-96,8-3-96,21-3-96 and 11-4-96. We have also observed that many more defects are mentioned in the repair order instructions than those mentioned by the complainant in the note placed on record. It appears that there were so many defects in the vehicle that even complainant could not remember all of them at the time of preparing the note. Job card also on record. There is a service receipt-cum-owner satisfaction dated 11-6-96 and the counsel for the appellant repeatedly tried to draw our attention to the same in order to demonstrate that the complainant had accorded his satisfaction by putting his signatures on the same. However the complainant has stated in his cross-examination that the said satisfaction was with regard to paint and petrol leakage. 15. The complainant has also placed on record report and affidavit of Sri Nikhilesh Jain, Mechanical Engineer who also happens to be surveyor and loss assessor for the LIC. The counsel for the appellant alleged that the alleged expert was not competent to give any such report as he was only a surveyor and loss assessor and cannot be an expert in the matter. The counsel for the appellant alleged that the alleged expert was not competent to give any such report as he was only a surveyor and loss assessor and cannot be an expert in the matter. In our opinion the competence of a Mechanical Engineer to give expert report regarding mechanical defects cannot be challenged simply because he also happens to be surveyor and loss assessor. On the other hand the appellant or the other opposite party/manufacturer have failed to get the vehicle examined by any expert. Hence, their objection in this regard cannot be sustained. 16. On consideration of facts of the case and perusal of various documents, we are of the considered opinion that the vehicle sold to the complainant was defective and as is evident from the job cards, the complainant had to run every now and then for getting his new vehicle repaired. Though the dealer repaired the vehicle yet the car could not become up to the mark as a new vehicle is expected to be. The complainant faced almost all the problems that could be faced with regard to the defects in any vehicle. It also appears from the material on record that the complainant made numerous efforts not only at dealer level but also at the manufacturer level but his problem was not solved. All this amounts to deficiency in service. 17. The next question to be decided by us is as to whether the learned Distt. Forum has erred in holding the appellant jointly and severally liable with the respondent no. 2 ? The learned counsel for the appellant /dealer vehemently contended that the appellant cannot be held liable in case of manufacturing defect. We have observed that it is a peculiar case The opposite party no. 2/manufacturer has tried to shirk from liability on various grounds. It has been alleged that the transaction of sale and delivery of the car were entered into by and between the complainant and the dealer, there was no privity of contract between the manufacturer and the complainant. The opposite party no. 2 has placed Dealership Agreement between the opposite parties on record and has alleged that the relationship between the opposite parties was on principal-to-principal basis. However, we have observed that the aforesaid agreement was for the period from 21-9-1991 to 20-9-1994 and not for the relevant period when the vehicle was sold. The opposite party no. 2 has placed Dealership Agreement between the opposite parties on record and has alleged that the relationship between the opposite parties was on principal-to-principal basis. However, we have observed that the aforesaid agreement was for the period from 21-9-1991 to 20-9-1994 and not for the relevant period when the vehicle was sold. The opposite party no. 1 has also not filed any agreement for the relevant period. In absence of any such agreement, it is not possible for us to know about the actual nature of relationship between the opposite parties. 18. It is also observed that at the time of taking delivery of the car the complainant had made complaints regarding the paint and has stated in his cross examination that since no other car was available with the dealer, he had taken delivery of the vehicle. Further as observed earlier, the defects in the vehicle were realised very soon after its purchase. In view of the fact that it is the duty of the dealer to conduct pre-delivery inspection it can be said that either the dealer did not take up pre-delivery inspection and therefore could not detect the defects or he knew that the vehicle is defective and with full knowledge of the vehicle being defective, sold it to be complainant as brand new vehicle. Such attitude of the dealer deserves to be condemned and amounts to unfair trade practice. Hence in our opinion, both the opposite parties are jointly and severally liable to the complainant. A reference in this regard may be made to Jose Philip, Mampillil Vs. M/s. Premier automobiles Ltd. and anr.2 wherein the apex court has held the manufacturer and the dealer jointly and severally liable in similar manner. The appellant placed reliance on Hindustan Motors Ltd. & ors. Vs. N Shiv Kumar and anr.3 wherein the dealer was not held liable for manufacturing defects but in view of the judgment in Jose Philip's case supra and facts and circumstances of the case, the appellant cannot get any benefit on the strength of the Hindustan Motors case. 19. Under the circumstances was are of the opinion that the liability of the opposite party no. 1 & 2 will be joint and several and the appellant/opposite party no. 1 cannot be permitted to shirk from liability towards the complainant. 20. 19. Under the circumstances was are of the opinion that the liability of the opposite party no. 1 & 2 will be joint and several and the appellant/opposite party no. 1 cannot be permitted to shirk from liability towards the complainant. 20. In view of the above, we do riot find any reason for interference in the impugned order of the Distt. Forum. The same is affirmed. The appeal is dismissed. The appellant shall bear his own costs of this appeal and shall pay that of the complainant/respondent no. 1 which is quantified at Rs. 5000/(Rupees five thousand) only. Appeal Dismissed.