Delhi District Court
M/S. Indo Asiatic Engineers Pvt. Ltd vs Mahindra & Mahindra Limited on 19 February, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.96/04
M/s. Indo Asiatic Engineers Pvt. Ltd.
Through its Managing Director
Sh.Praveen Arya,
C-102, Industrial Area, Phase-II,
Mayapuri, New Delhi-110064. ................Plaintiff
Vs.
01. Mahindra & Mahindra Limited,
Through its Managing Director
Mahindra Tower, Road No.13,
Worli, Mumbai.
02. M/s. Shri Durga Automobiles,
55, Rama Road, Near Moti Nagar,
New Delhi-110015.
Through its
Prop./Partner/Principal Officer/MD.
03. Mahindra & Mahindra Limited,
Through its Branch Manager,
Jeewan Tara Building,
5-Parliament Street,New Delhi-110001. ................Defendants
Date of institution : 23.12.2004.
Date of reservation : 22.01.2011.
Date of pronouncement : 19.02.2011.
JUDGMENT
This is a suit for mandatory injunction and for recovery of damages/compensation of Rs.2,75,000/-, filed by the plaintiff against the defendants.
Suit No.96/04 page 1 of page 11 In brief, the facts of present case as made out in the plaint are that plaintiff is a private limited company duly incorporated under the Indian Companies Act and Sh.Praveen Arya, is the Managing Director of the plaintiff company and is duly authorised by the Board of Directors of the plaintiff company to institute the present case. It is stated that plaintiff company purchased one Scorpio vehicle vide registration no.DL 9C G4411 on dated 27.09.2003, from their authorised dealer i.e. Defendant no.2 and the vehicle was got financed and the entire payment of the said vehicle was made to the defendants. It is stated that from the day first, the aforesaid vehicle started giving problems and the plaintiff repeatedly informed about this to the defendant no.2 as well as the Delhi office of Mahindra & Mahindra Limited, but neither the office of defendant no.1, nor the defendant no.2, rectified the said defects. It is stated that defendant no.1 is the manufacturer of the said vehicle, the defendant no.2 is the authorised dealer of the defendant no.1 in respect of the said vehicle and defendant no.3 is the branch office of defendant no.1. It is further stated that two emails were also sent by the plaintiff to the office of the defendants but, none from the side of the defendants paid any heed to the problem of the plaintiff and same were not rectified. On 14.12.2003, plaintiff sent the aforesaid vehicle for first service to defendant no.1, just after the reading of the vehicle to the extent of 5410 Kilo Meters as aforesaid vehicle was giving missing problem from the day first which were not set right but the defendant no.2 placed some lame excuses before the plaintiff and further it was assured that at the time of second service, the missing problem will go off, but it never happened. The vehicle was regularly giving the problem and also producing high noise from the engine and hence, the vehicle was again sent for second service when the Kilo Meter reading of the said vehicle was at 10918 on 09.03.2004, but driving of the said vehicle became Suit No.96/04 page 2 of page 11 unbearable as after the second service there was very high missing in the said vehicle which existed at the time of first service also and the RPM of the said vehicle went up and came down of its own. There was also shivering/shattering in the said vehicle and the AC of the vehicle was not cooling at all. On 11.03.2004, the plaintiff again took the aforesaid vehicle for check up and on 12.03.2004 vehicle was delivered back after doing some minor job, but, on 13.03.2004, plaintiff found that not even single problem of said vehicle was rectified and inspite of repeatedly sending the said vehicle, to the defendant no.2, for its rectification same did not yield any positive result. It is the case of the plaintiff that defendant no.2 and 3 on the instructions and on behalf of defendant no.1 kept on experimenting on the aforesaid vehicle of the plaintiff without yielding any fruitful result and finally, the defendant no. 2 and 3 came to the conclusion that the fuel injunction pump of the aforesaid vehicle was to be replaced. Hence, the vehicle was sent for changing the same on 10.04.2004 and after three days the vehicle was returned to the plaintiff but, it was a shock to the plaintiff that the vehicle was in its worst position as the engine was giving noise like that of a truck and the missings were still existing there, the RPM went so high that the vehicle was shivering/shattering and the RPM count without AC was 1000 and with AC, it was 1050 whereas, these should have been very less and consequently, the original fuel injunction was fitted back on 19.04.2004, but the problem remained continued and even after third service on 19.05.2004, when reading was 15610 Kilo Meter, nothing changed. Again, on 05.08.2004 the aforesaid vehicle was asked for service after 20000 Kilo Meter by the defendant no.2 and the service of the vehicle was again done after 25000 Kilo Meter on 22.04.2004, but yielding no results and finally the plaintiff approached the defendant no.2 and 3 on 01.10.2004 and again Suit No.96/04 page 3 of page 11 asked to rectify the said problem but, same were not rectified as the vehicle was having the major inherent manufacturing defect and consequently, the vehicle itself broke down on 09.10.2004 and again it was suggested by defendant no.2 on behalf of defendant no. 1 and 3 that fuel injunction pump of the said vehicle is again to be changed. It is stated that even the defendant no.2 changed the fuel injunction pump thrice but the aforesaid vehicle came to its worst condition. Therefore it is claimed that defendant no. 1 and 1 to 3 are jointly and severally are liable to replace the aforesaid vehicle and to pay the damage suffered by the plaintiff due to the harassment, mental tortures, agony and financial losses. It is stated that plaintiff sent a legal notice dated 12.10.2004, through his counsel requiring the defendants to replace the said defective vehicle and pay the damages to the tune of Rs.10,00,000/-. Hence, the present suit for a grant of mandatory injunction, thereby, directing the defendants to replace the said vehicle no.DL 9C G-4411 (Scorpio) bearing Chassis No.2BD C32J87786 with the new vehicle and a decree for recovery of Rs.2,75,000/- as damages /compensation alongwith interest @18% pa from the date of filing of suit till its realisation, is filed.
Defendant no. 1 and 3 contested the present suit by filing detailed written statement, while taking preliminary objections that no privity of contract exists between the plaintiff and defendant no.1 and 3 as the legal relationship of the defendant no.1 and 3 with dealer i.e. defendant no.2 is on principal to principal basis. Petition is not maintainable without a declaration that vehicle has a manufacturing defect which can't be set right; the vehicle is having no manufacturing defects and for this reason suit is liable to be dismissed.
On merits, the contents of the plaint have been denied while submitting that there is or was no manufacturing defect in the vehicle and Suit No.96/04 page 4 of page 11 under the warranty policy, plaintiff is supposed to avail the free service for upkeep of the vehicle and hence the vehicle was reported for servicing which have been availed by the plaintiff and plaintiff has been raising non genuine complaint regarding RPM/engine missing/inadequate Air conditioning etc. which have been checked and rechecked again and again on the request of the plaintiff and each time the vehicle has been found to be functioning normally. It is prayed by defendant no.1 and 3 that suit of the plaintiff is liable to be dismissed with cost.
Defendant no.2 also filed detailed written statement while taking preliminary objection that suit of the plaintiff is not maintainable in the present form; suit has not been signed verified by the duly authorised competent person; suit is hit by the provision of order 7 rule 11 CPC, as no cause of action ever arisen in favour of the plaintiff. On merits, the contents of the plaint have been denied. It is specifically denied by defendant no.2 that vehicle in question started giving problem from the day one. It is submitted that defendant no.2 never recommended for replacement of fuel injunction pump or for reinstalling the original one. It is submitted by defendant no.2 that suit of the plaintiff be dismissed.
plaintiff filed replication to the written statement of defendants whereby denying the contents of written statement while reaffirming the averments made in the plaint.
From the pleadings of the parties following issues were framed vide order dated 26.07.2005:-
1. Whether the plaint has been signed, verified and filed by the duly authorised person on behalf of the plaintiff ? OPP.
2. Whether the plaintiff has cause of action to institute the suit against the defendant ? OPP.
3. Whether there is no privity of contract between the plaintiff and Suit No.96/04 page 5 of page 11 defendant no.1 and 3 as alleged in preliminary objection no.2 of the WS of defendant No.1 and 3 ? OPD 1 and 3.
4. Whether the suit of the plaintiff is not maintainable as alleged in preliminary objection No.2 of the WS of the defendant No.1 and 3 ? OPD 1 & 3.
5. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for ? OPP.
6. Whether the plaintiff is entitled to the recovery of the suit amount as claimed in the plaint ? OPP.
7. Whether the plaintiff is entitled to the interest, if so, at what rate for what period and for what amount? OPP.
8. Relief.
In support of its case, plaintiff examined Sh. Praveen Arya, Managing Director of plaintiff company as PW-1 and defendant examined DW-1 Sh.B.Rajendran, Laison office of M/s. Lido Commercial Company Ltd. and DW-2 Sh.A.Viswanath, General Manager, Corporate, Mahindra & Mahindra Ltd, Bhikaji Cama Place, New Delhi.
I have heard ld. counsel for parties and also perused the written submission as filed on behalf of defendant no.1 and 3. My issue wise findings are as under:-
Issue no.1.
The onus to prove issue no.1 was upon the plaintiff. PW-1 deposed that he is the Managing Director of plaintiff company and proved the copy of resolution passed by the board of directors of plaintiff company dated 16.12.2004 as Ex.PW-1/1 . In his cross examination PW-1 confirmed that there are two directors in the company and he is the Managing Director and there is one more director in the company. He further confirmed that the minute book of company is maintained. Resolution Ex.PW-1/1 as filed Suit No.96/04 page 6 of page 11 on record, shows that Sh.Praveen Kumar Arya, Managing Director was authorised to pursue the present case. Ld. counsel for defendants failed to show how the plaint has not been signed and verified by the authorised person. In view of resolution Ex.PW-1/1 it has been duly proved that the plaint has been signed, verified and filed by the duly authorised person on behalf of the plaintiff company. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue no.2.
The onus to prove this issue was upon the plaintiff. PW1 deposed that from the very first day the vehicle in question i.e. bearing no.DL9CG4411 started giving problems and plaintiff repeatedly informed about this to defendant no.1 and 2 as well as Delhi office of defendant no.1 and also sent two emails Ex.PW-1/3 and 1/4, but the problem which were existing from the day first in the vehicle were never rectified and the vehicle itself broke down on 09.10.2004. DW-2 Sh.A.Viswanath also confirmed in his cross examination that as per the record, it is correct that there was some defect in fuel injunction pump, therefore, it cannot be said that suit of the plaintiff is without any cause of action. Accordingly, this issue is decided in favour of plaintiff and against the defendants. Issue no.3 and 4.
The onus to prove these issues was upon defendant no.1 and 3. Ld. counsel for defendant no.1 and 3 argued that there exists no privity of contract between the plaintiff and defendant no.1 and 3, as they are the manufacturer of the vehicle, who sells the vehicles to the dealers, who in turn sell them to their customers and there is no principal-agent relationship with the dealer and the legal relationship of the manufacturer i.e. defendant no.1 and 3 with the dealer i.e. defendant no.2 is on principal to principal basis. On the other hand, ld. counsel for plaintiff argued that Suit No.96/04 page 7 of page 11 defendant no.2 is admittedly, dealer of the defendant no.2 and 3, who was authorised to give free service of the vehicle, on behalf of the manufacturer, during warranty period, therefore it cannot be said that there is no privity of contract between the plaintiff and defendant no. 1 and 3. The principle of privity of contract provides that a party who is not party to a contract, cannot claim benefit under it. DW-2 Sh.A.Vishwanathan, General Manager, Corporate, confirmed in his cross examination that the company has the liability for the vehicle sold by its dealer only in respect of any manufacturing defect. Thus, as per DW-2 the company is liable for any manufacturing defect in the vehicle, therefore, it cannot be said that defendant no.1 company has no obligation towards the purchaser of the vehicle manufactured by it. The terms and conditions between defendant no.1 company and defendant no.2 may be principal to principal but when the manufacturing company is liable towards manufacturing defects in the vehicle, it cannot be said that suit is not maintainable, due to these objections, taken by defendant no.1 and 3 in para no.2 of written statement. Therefore, these issues are decided against the defendant no.1 and 3 and in favour of plaintiff.
Issue no.5 and 6.
Issue no.5 and 6 are interlinked and being taken up together. The onus to prove these issues was upon the plaintiff. PW-1 Sh.Praveen Arya, deposed that from the day first, the vehicle no.DL 9CG441 started giving problems and the plaintiff repeatedly informed about this to the defendant no.2 as well as the Delhi office of Mahindra & Mahindra, but neither the office of defendant no.1 nor the defendant no.2 did rectify the said defects, although, two emails Ex.PW-1/3 and 1/4 were sent. PW-1 further deposed that on 14.12.2003, the plaintiff company sent the aforesaid vehicle for first service to defendant no.2 at 5400 Kilo Meter as the aforesaid vehicle Suit No.96/04 page 8 of page 11 was giving missing problems which were not set right despite second services, when the Kilo Meter reading was 10918 on 09.03.2004 and subsequently, the vehicle was taken up for check up on 11.03.2004, 12.03.2004, 15.03.2004, 10.04.2004, 19.05.2004, 05.08.2004, 22.09.2004 and finally on 01.10.2004. The defendant no.2 and 3 were against asked to rectify the problem of high missing and about the RPM of the vehicle, AC cooling and despite the change of fuel injunction pump, the problem of undue noise, missing shunting and jumping of RPM of engine continued as the vehicle was having major inherent manufacturing defects. PW-1 further deposed that defendant no.2 changed the fuel engine pump thrice but the aforesaid vehicle came to its worst ever condition and hence, all the defendants are jointly and severally liable to replace the aforesaid vehicle and pay the damages suffered by the plaintiff due to the harassment, mental torture, agony and financial losses. PW1 proved the legal notice sent through its counsel dated 12.04.2004 Ex.PW-1/5 and deposed that plaintiff company is entitled to claim the damages to the tune of Rs. 2,75,000/- and for replacement of the aforesaid vehicle. In his cross examination, PW-1 confirmed that it is correct that under the terms of the warranty the vehicle is not to be replaced however, if the fault in the vehicle persists, despite services, it is the duty of the manufacturer to provide the replacement of the faulty vehicle with a new vehicle. Thus, as per plaintiff under the terms of the warranty the vehicle is not to be replaced, however, it is deposed that it is the duty of the manufacturer to replace the vehicle if the fault persists, despite services. It is matter of record that warranty card or terms and conditions in respect of vehicle in question as given by defendants have not been filed on record. Now the question arises, whether the vehicle in question was having manufacturing defect. The contention of ld. Counsel for plaintiff is that despite repeated Suit No.96/04 page 9 of page 11 services and even after changing the fuel injunction pump the problem in the vehicle remained and fault could not be rectified till date due to the manufacturing defect. DW-2 Sh.A.Viswanath, also confirmed that as per record, there was some defect in fuel injunction pump which was disclosed to their authorised service station at the time free service of the vehicle and further confirmed that the AC of the vehicle was found defected but the defect was cured by service station. The job card issued by defendant no.2 in respect of service of the vehicle i.e. Ex. PW-1/7 (colly) also shows that the RPM problem was checked and adjusted on the complaint of plaintiff and the fuel injunction pump was also replaced. In his examination in chief in para no.15 PW1 deposed that as the vehicle was having major inherent manufacturing defect and consequently the vehicle itself broke down on 09.10.2004, however, in his cross examination conducted on 28.05.2007, he confirmed that vehicle is still being run by him and the same has travelled at a distance of about 79000 Kilo Meter but the problem is still persisting. Had it been that a vehicle is having manufacturing defect it cannot run for a long distance of 79000 Kilo Meter. There is no expert opinion on behalf of plaintiff to show that the defects as pointed out by the plaintiff in his examination in chief amounts to manufacturing defects as burden to prove this fact was upon the plaintiff. In absence of evidence of terms and conditions of the warranty in respect of vehicle in question and the fact that the vehicle was having manufacturing defect plaintiff is not entitled for decree of mandatory injunction for replacing the vehicle with new one. However, the job cards as proved by plaintiff on record shows that plaintiff made complaint from the very first service in respect of RPM and AC which had not been rectified as per satisfaction of the plaintiff, during warranty period, therefore, defendants are liable to pay damages/compensation to the plaintiff on account of mental agony/ Suit No.96/04 page 10 of page 11 harassment. Although, plaintiff has not led specific evidence in respect of particular damage/loss claimed by him but, keeping in view the evidence led by the parties on record, I am of the considered opinion that both the defendants are liable to pay damage/compensation, jointly and severally, to the tune of Rs. 60,000/-(Rupees Sixty Thousand Only) to the plaintiff, within two month from today. Accordingly, these issues are decided in favour of plaintiff and against the defendants.
Issue no.7.
The onus to prove this issue was upon the plaintiff. Plaintiff has claimed interest on the damages @ 18% per annum, however, the court is of the opinion that 18% interest is on a higher side and interest of justice would met if plaintiff is awarded interest @ 12% per annum, on the damage compensation i.e. of Rs.60,000/- (Rupees Sixty Thousand Only) , if failed to pay within two months, from the date of decree till its realisation. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Relief.
In view of my findings on the aforesaid issues, suit of the plaintiff is decreed alongwith cost to the extent that plaintiff is entitled for damages to the tune 60,000/- (Rupees Sixty Thousand Only) to be paid by defendants, within two months from today. If defendants fail to pay the same, then are liable to pay interest @ 12% per annum on the damage/compensation i.e. Rs.60,000/- (Rupees Sixty Thousand Only) from the date of decree till its realisation. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 19.02.2011. SCJ/RC/(North)/DELHI Suit No.96/04 page 11 of page 11