National Consumer Disputes Redressal
Vinot Sharma vs Hindustan Motors Ltd. And Anr. on 3 April, 2002
ORDER
B.K. Taimni, Member
1. This appeal has been filed by the appellant, Shri Vinod Sharma against the order of the State Commission, dismissing the complaint.
2. Brief facts of the case are that the appellant purchased a Contesa Car from the 2nd respondent on 28.12.1992. This car stopped during local running on 30.12.1992. On fault being reported to the 2nd respondent and after fitting it with a 'service' engine, the car was returned to the appellant on 31.12.1992. The car, once again stopped, it was repaired and certain parts replaced on 8.2.1993, complete cylinder Head Assembly of the car was replaced and after obtaining a 'satisfaction' report from the complainant, the car was given back to the complainant. In between on 25.1.1993 the complainant wrote to both the respondents, in effect, for change of car. A reply to the letter dated 29.1.1993 is on record, which speaks of some problem with the service engine fitted, change of electronic fuel pump and requesting the complainant to bear with them till the arrival of cylinder Head Assembly. Again a letter is written by the complainant to the 2nd respondent that the complainant is being given a repaired engine, which can hardly be considered a new car, to which a reply is sent by the respondents on 1.3.1993 that a new cylinder Head Assembly has been fitted to the complainant's satisfaction which he has given in writing. There is no cause of any further action. Not satisfied with the reply, the complainant filed a complaint before the State Commission praying for direction for replacement of the car with full accessories, payment of Rs. 35,900/- with interest i.e. the amount spent on air-conditioning, insurance and car stereo and Rs. 1.5 lakhs for mental harassment. The State Commission after hearing both the parties dismissed the complaint, hence this appeal.
3. It is the case of the appellant that his car stopped for the first time when it had hardly run 60 kms. and again on 12.1.1993 the car stopped. In the Garage of 2nd respondent, carburetor from the original engine of his car was replaced proving the fact that no effort was being made to replace the engine. He also alleges that no cylinder Head was changed and in fact a complete fraud was played on him. There were other defects in the car which are still existing. It was also disputed by him that cylinder Head of the engine was replaced by the 2nd respondent as it could not have been done without the consent of respondent No. 1. There is a contradiction between the letter dated 11.3.1993 of the 1st respondent and pared 23 of the reply filed by 2nd respondent. No engine was replaced. His complaint was supported by the affidavits of three Advocates who were witnesses to his discomforts. The order of the State Commission is bad hence need to be dismissed.
4. On the other hand, it was argued by the leaned Counsel for the respondent that it is a fact that the car stopped almost immediately after purchase, but a service engine was fitted and the car ran on the new engine till on account of improper maintenance, the car again stopped, certain parts were repaired/replaced and the car started running again. It is important to note that this was a service engine on which no warranty existed. This has been done by the 2nd respondent, to help the appellant keep his car running. As soon as cylinder Head was received i.e. the first week of February, it was fitted alongwith the engine and since then the car has been running smoothly. It was also argued that in the terms of warranty it is clearly spelt out :
"The liablity of the company is limited to exchange or repair as above. Replacement of car, any form of liability to lost time, inconvenience, loss of use of the car of other consequential damages, is hereby expressly excluded".
In Bharati Knitting v. D.H.L. Worldwide, II (1996) CPJ 25 (SC)=(1996) 4 SCC 704, the Hon'ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of contract.
5. It was also argued that in Mahindra & Mahindra Ltd. v. B.C. Thakurdesai and Anr., II (1993) CPJ 225 (NC), it is held that :
"If a consumer purchases some mechinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer, if he is asked to replace the whole machinery without sufficient cause."
6. Similarly this Hon'ble Commission in the matter of Tata Engineering & Locomotive Co. Ltd. and Anr. v. M. Moosa, 1994 (3) CPR 395, has held that the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or defective part can be replaced.
7. After having given satisfaction and no complaint thereafter, the appellant has no ground to seek any relief. The State Commission's order is as per facts of this case and law on the subject -- hence need to be maintained. This appeal need to be dismissed.
8. We have heard the arguments and perused the material on record. Basic facts are not disputed. However, what is in dispute is, whether it was the engine which was to be replaced as contended by the appellant or was it cylinder Head which was to be replaced as contended by the respondents and what was actually done ?
9. We have the whole correspondence on record, which does not help us much and also the three affidavits filed on behalf of the complainant. As per record and written version filed by the 2nd respondent, when the broken-
drown vehicle was got inspected by Engineer of the 1st respondent, the 'cylinder Head' was found damaged requiring replacement. It is not disputed that the whole engine assembly was taken out and replaced with a service engine provided by the 2nd respondent to keep the car going. Since replacement of damaged part was covered by the warranty clause and was within the warrantly period, a new 'cylinder Head' was ordered as replacement and was fitted in the original engine of the car purchased by the appellant. The second break-down had nothing to do with the original engine. It was a problem of 'service-engine' provided by respondent No.
2. Obviously no new engine was to be provided as only cylinder Head was found damaged which was replaced. There is a difference between the engine assembly and cylinder Head. In our view two things go against the appellant; one that on 8.2.1993 a full satisfaction document is signed by the appellant in which it is clearly written that "cylinder Head Assembly replaced". There is not even a whisper that engine has been changed. There is no correspondence or any proof of any record of appellant having protested about the said document of satisfaction till the time of filing a complaint on 17.3.1993 and secondly there is nothing on record to show that after 8.2.1993 there has been any problem with running the vehicle. We see from the record that the vehicle did break-down on 28.12.1992, which was fitted with a service engine by the 2nd respondent and the car returned in running order on 30.12.1992 and that there was a break-down of the car second time on 12.1.1993. It has nothing to do with engine, it was a problem with the carburetor or fuel injection pump on the service engine, which was repaired and the car given back till the car was again requisitioned for fitting the engine with a replaced cylinder Head Assembly. We are unable to understand as to why the appellant while attaching all papers with the Memo of Appeal conveniently forget to enclose the crucial documents i.e. the satisfaction document dated 8.2.1993 leaving us with the impression that he has not come to us with clean hands. Much has been made of Para 23 of the complaint and reply dated March 11, 1993 of the 1st respondent. Fact of the matter is that on 25th January, 1993, what the car had, was a second hand i.e. a service engine provided by the 2nd respondent, whereas reply of the 1st respondent dated 1.3.1993 in para 3 of the letter is based on the fact of placing back the engine with a new cylinder Head Assembly. It is in the perspective that this reply need to be read, as the critical time/dated of 8.2.1993 falls between these two dates. We have also gone through the written version (para 23) filed by the 2nd respondent. There may be no point in reading the para in isolation; whole of written version need to be seen as one piece and to be read as such. No doubt is left in our mind, that it was cylinder Head Assembly which was to be replaced and this is precisely what was done. We have also gone through the affidavits filed by the three Advocate colleagues of the complainant. Mr. C.M. Sharma states in his affidavit that representation of the 2nd respondent, Mr. Mohit states "that engine of the car is imported from Japan and the company would not tolerate such a major defect and a new engine is to be replaced in the car.....".
In the second affidavit filed by Mr. Madan Das Sharma, Advocate, he states "that Mr. Vinod Sharma, Advocate was misinformed by the respondent No. 2 with regard to change of engine". The third affidavit is of Mr. Rajnish Kalra, Advocate. He states that on 8.2.1993. Mr. Vinod Sharma was informed in the presence of witnesses that complete cylinder Head Assembly had been received from respondent 1 and could be replaced in the car and accordingly the original defective engine was replaced in the car. On analysis, we see that nothing comes out of it -- in fact the affidavit of Mr. Kalra is contradiction in terms -- on the one hand he states that complete new cylinder Head assembly has been received and goes to say that "accordingly the original defective engine was replaced in the car". The facts emerging from the case are that there appears to be a mix up in the mind of the complainant and his witnesses. Engine Block remained the same. What was replaced was cylinder Head Assembly in the original engine and not the engine itself. After sifting through the evidence/material on record, we are unable to satisfy ourselves of any proof or evidence that there was any indication of change of 'engine-block' assembly. In these circumstances, we see no merit in the contention that it was the whole engine which was to be changed and the complainant felt cheated. What was refitted with car by way of replacement was the original engine but with a new cylinder Head Assembly. Nothing more was required to be done by respondents in terms of the terms and clauses of Warranty. There is no merit in the prayer of asking for a new car, this has not been mentioned in whatever context, in the body of Memo of Apeal. What has been agitated is that a second hand engine was fitted in the car and it is a case of fraud on the part of the respondents who misled the complaint to believe that the engine has been replaced. We see no merits in either of the contentions as per discussion above as well based on the "document-of-satisfaction" signed by the complainant. The respondent at no time stated that they will replace the old with a new engine.
Their case is that they promised replacement of cylinder Head Assembly, which is what they did and also wrote on the satisfaction document dated 8.2.1993, signed by the complainant. The complainant is a literate person and presumption is, he knew what he is signing. It states cylinder Head Assembly replaced, not a word about 'engine replaced'. We see no merit with case of the appellant. Be that as it may we also cannot be oblivious of the fact that a new car broke down within 2-3 days of its purchase and again twelve days later, albeit operating on a service engine provided by the 2nd respondent. We are conscious of Clause 5 of the warranty which reads as under :
5. The liability of the company is limited to exchange or repair as above. Replacement of car any form of liability to loss done, inconvenience, loss of use of the car or other consequential damages is hereby expressly excluded.
10. The learned Counsel's reliance on this clause and upon the judgment in Bharati Knitting v. DHL Worldwide (supra) does not help the respondents. This is a warranty given by the company. The fine print-Clause 5 or for that matter the warranty does not bear the signatures of the appellant to make it a contract between the parties. In the cited case the Hon'ble Supreme Court had held "when a person signs a document which contains certain contractual terms, normally the parties are bound by such contract...." This is not the case here. There is no document on record to show that warranty was signed by the appellant. There is no doubt in our mind that anguish and mental agony was caused for the twin incidents of car stopping on the road. When one buys a new vehicle, it is not acquired to acquire problems. In our view to that extent deficiency on the part of the respondents is obvious for which the appellant is entitled for compensation, which we fix at Rs. 20,000/- and to that extent the order of the State Commission is modified and to the extent appeal is allowed with cost of Rs. 2,000/- to be paid by the respondents jointly and severally to the Appellant.