State Consumer Disputes Redressal Commission
Hindustan Motors Ltd. vs Prem Gupta S/O Shri Roop Chand on 12 October, 2012
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 12.10.2012 First Appeal 637/2000 (Arising out of the order dated 31.1.2000 passed by the District Forum-II, Qutab Institutional Area, New Delhi in complaint case No. 101/96) Hindustan Motors Ltd. Prakash Building, 7, Tolstoy Marg, New Delhi-110 001 .........Appellant VS 1. 2. Shri Prem Gupta S/o Shri Roop chand Gupta ( Now Deceased) through his LRs Mrs. Shashi Gupta w/o Late Shri Prem Gupta, Proprietor of M/s Continental Electric Stores, 2-A/10, B-P (Near Super Bazar) NIT Faridabad, Shri Sanjay Gupta, S/o of Late Sh. Prem gupta ...Respondents CORAM Justice Barkat Ali Zaidi, President Mrs. Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
JUSTICE BARKAT ALI ZAIDI, PRESIDENT
1. This appeal by Hindustan Motors (OP No.1) is filed against an order dated 31.1.2000 passed by CDRF-II directing the appellant and respondent No.2 Krishna Automobiles (OP No.2) jointly or severely to either replace the car bearing registration No.HR-29-E-5090 with a new car within one month after the receipt of the copy of this order along with compensation for mental harassment amounting to Rs.20,000/- and cost of Rs.2,000/- or to refund back the cost of the car amounting to Rs.3,49,350/- with interest @ 10% p.a. from 25.1.1995 till the date of payment along with compensation and costs mentioned above within next one month to respondent No.1 Sanjay Gupta, failing which the OPs shall refund the entire amount calculated upto the date of this order with interest @ 24% from the date of this order till payment.
2. Aggrieved by this order the Appellant who is OP-1 in the complaint case has come before us assailing the above order on variety of grounds.
3. Facts giving rise to this appeal are that Shri Prem Gupta, the deceased Complainant, predecessor-in-interest of Shri Sanjay Gupta(Respondent No.1) substituted as his legal representative, purchased Motor car bearing Registration No.HR-29-E-5090 in the name of his firm M/s Continental Electric Stores for his personal use being its proprietor paying a sum of Rs.3,47,000/- vide cheque on 23.1.1995. The car was delivered by Respondent No.2 (OP-2 in the complaint case) on 25.1.1995.
4. The complainant as alleged by him found that the car was not in a good & perfect condition as should have been expected and following defects were observed in the vehicle (i) On turning the engine is making a heavy noise and there is a gap between bonnet and the door and the same is without paint and (ii) Besides the above defects, during rain, there is heavy water seepage, which he brought to the notice of OPs on 3.2.1995 & intimated them vide letter dated 4.2.1995 and subsequently vide letters dated 15.2.95, 4.7.95 and 13.8.95. Despite that he brought these defects to the notice of Respondent/OP-2 and appellants number of times, they failed to rectify them and even charged from him for some spare-parts and labour etc. which he was not required to pay. He alleged that even the Service Engineer of the OPs admitted that the defects could not be rectified. He therefore filed a complaint alleging that the OPs supplied him a defective vehicle which they failed to correct and were therefore involved in unfair trade practice, deficient in service praying that the vehicle be got checked from an independent Engineer/Surveyor to verify the defects and OPs be directed to replace the vehicle with a new car of similar description free from any defect besides the costs of litigation.
5. Appellant is the manufacturer and respondent No.2 is the dealer from whom the complainant had purchased the car.
6. The OPs in their written version averred that the complaint was not maintainable as there was no manufacturing defect in the car and no deficiency in service as alleged on their part. They alleged that the complainant was delivered the vehicle on 25.1.1995 after he fully checked it and felt satisfied and the alleged defects pointed-out being minor in nature were duly attended to his full satisfaction, and rectified. The OPs alleged that the complainant had purchased the car for commercial purpose and hence is not a consumer within the meaning of the Consumer Protection Act.
7. OP/Respondent No.2 in his written version alleged that the car was delivered to the complainant after due pre-inspection on 18.1.1995 and according to the warranty conditions free initial services up to 16,000/- kms for one year initial period were permitted. He averred that the complainant brought the car to his garage on 3.2.1995 for first free service and besides other jobs carried-out he replaced the oil filter free of charge and when the car was brought to the visited the garage on 20.2.1995 again Air-Conditioner was checked, noise in the engine and differential etc. were removed and complaint regarding the paint was also attended to and in turn a note of satisfaction was recorded by the complainant. The complainant, then, visited their garage on 2.3.1995 with the following complaints in the car:
a) Steering vibration
b) Engine noise
c) Collent leakage
d) Engine over-heating
e) Differential
f) First gear sticking
g) Light check up
h) All doors rattling Which the OP rectified on the same day. The complainant then brought his vehicle to their garage on 3.6.1995 for the third service when the OP not only changed the mobile oil and oil-filter, but also attended to the following complainants and rectified them:
a) Rear suspension noise
b) Break adjustment
c) Engine RPM setting
d) Coolant leakage
e) Dash board noise
f) Light check up
g) Water leakage
h) Door & paint defect The complainant thereafter came with the vehicle to the garage of OP(respondent No.2) on 15.6.1995, 28.6.1995 complaining that the Brake pedal vibrated when brakes were applied, coolent was leaking; there was noise in transmission, differential, dash board, fuel girage, door glass, front and rear suspension, door adjustment besides defective point brake lining, leakage from radiator and seepage from front wind-shield which were removed to the satisfaction of the complainant and like earlier complaint recorded his satisfactory note before taking the vehicle. The OP refused to the job-cards in this behalf and denied any deficiency in service on his part.
8. The appeal by the appellants is forwarded on the grounds that the car sold to the complainant was transported from their factory at Hind Motors, Distt. Hoogli, West Bengal to their Warehouse in New Delhi, and was sold to the Complainant respondent No.2, who took its delivery on 17.1.1995 after full and complete inspection and feeling satisfied that the vehicle was in perfect condition and good for sale on 18.1.1995. Respondent No.2 carried out a pre-delivery inspection of the car under its internal arrangement with the appellant and it was so recorded in the PDI Card (Annexure-C). It is further stated that on inspecting the car respondent No.2 found that its brake-drums needed skimming and some minor denting work was required in the left front door and the mud-guard. According to them the skimming of brake drums is a minor alteration involving the shaping so that it acquired round shape. The loss of the roundness and slight denting occurred during the transportation of the car either between the appellant factory to its warehouse or between the warehouse to the premises of the respondent No.2, which could not be considered as manufacturing or serious defect.
9. We have heard Shri Kapil Kher, Counsel for the Appellant and Shri Rajeshwar Gupta, Counsel for respondent No.1 and Shri Vinit Mehta, Counsel for respondent No.2
10. It is not disputed that the complainant brought his car to the workshop of respondent No.2 on 20.2.1995, 2.3.1995, 3.6.1995, 15.6.1995, 28.6.1995, 4.7.1995, 31.8.1995, 6.9.1995 with some or the other complaint and every time these were satisfactorily attended to for which the complainant even appended a note of satisfaction on the job card on each visit but still had a grievance and filed the complaint on 12.1.1996. It is argued on behalf of the appellant that even if, it is assumed, that the car had been in accidental condition when it was sold to the complainant, the appellant cannot be held liable for any defect in the goods or deficiency in service jointly or severely with respondent No.2 because their relationship with respondent No.2 is on Principal to Principal basis and the appellant retained no control, lien or rights over the car, once it was collected by respondent No.2 from their warehouse.
Hence they cannot be held jointly and severely liable for the fault, if any on the part of respondent No.2.
11. This appeal filed on 30.3.2000 was heard and earlierdecided on 28.11.2005 by this Commission and it was observed as follows:-
Let us assume that the car did not suffer from any manufacturing defects, and the defects pointed out above were rectified, whenever the car was taken to their workshop from time to time, but the fact remains that the respondent had taken the car on several occasions with large number of defects. If one is placed in such situation after purchasing a brand new car, there can be no other inference to be drawn that the original car was not free from defects. It was held that taking over all view of the matter and harassment suffered by the respondent, to get the defects removed, in the car and pointed out in the job cards, in our view the replacement of the car with a new car would not be feasible. The car was purchased way back in the year 1995, and in the given facts and circumstances of the case, we partly allow the appeal by modifying the impugned order, directing the appellant to pay compensation of Rs.50,000/- which shall include costs of litigation also..
Complainant Sanjay Gupta filed a Revision application bearing No. 612 of 2006 against the State Commissions order which was allowed on 26.11.2009 by the National Commission who remanded the appeal to this State Commission to decide it afresh affording due opportunity of hearing to Counsel for the parties with all pleas left open.
13. In their order the National Commission observed In the grounds of appeal before the State Commission, the petitioner in para 14 has specifically taken the plea that the finding recorded by the District Forum, that the car had met with an accident prior to the delivery of the car was incorrect, and since the State Commission had not recorded any finding as to whether accidental car had been sold, therefore, findings on that aspect was required.
14. On behalf of Respondent No.2, it is stated that the allegations about the vehicle in question, having been met with an accident prior to its delivery to Respondent No.1, affirmed by the Ld. District Forum were wrong, merit less and illegal. They further stated that the PDI Card (Annexure R/1) issued by them (Respondent No.2) nowhere establishes that the car-in-question was involved in any accident before its sale to the complainant. According to the Respondent No.2 number of defects pointed out in the Complaint were solely based upon alleged accident prior to its delivery to the Complainant. It is argued that a cursory look at the PDI card shows skimming of brake drums and denting on the left front door and left front mudguard, which are nothing but minor defects. PDI of the vehicle in question was conducted by respondent No.2 on 18.1.1995 and at that time it was observed that there was brake pedal vibration on application of brakes and the left front door and left front mudguard were dented, which are generally common and could be caused while loading/unloading a vehicle from the warehouse to the show-room and that is why PDI was conducted for screening any defect and the vehicle was delivered after removing the said minor defects in perfect running condition. Since it was observed that there was some problem with the brake of the vehicle that was rectified by skimming the brake drums involving shaping of the brake drums so that it acquires a round shape; that the minor dent at the left front door and the mudguard were also removed and the vehicle was again put in a perfect running condition, after applying polish as mentioned in the PDI overleaf, which did not even required painting.
15. It is also contended that the complainant though prayed for appointment of independent engineer/surveyor but did not press for the same through out the proceedings and there being no expert evidence on record, the allegations of inherent manufacturing defect in the vehicle are not established; that since every time the complainant brought the vehicle for service, the same was provided to his satisfaction, therefore, they cannot be held liable for deficiency in service in any manner, either jointly with the appellant or severely for any compensation as claimed and ordered by the District Forum vide the impugned order.
16. From the above stated facts following points arise for our determination:-
(i) Whether the complainant is a consumer as defined under the Consumer Protection Act, 1986?
(ii) Whether there is a manufacturing defect in the vehicle sold to the complainant?
(iii) Whether there is any deficiency in service, if so on whose part?
(iv) Whether the sale of vehicle to the Complainant by OP-2 (respondent 2 herein before us) is unfair trade practice as defined under the Act?
(v) Whether the liability of the appellant and respondent No.2 is joint or several?
Issue No.(i):
Both the appellant and respondent No.2 by way of preliminary objection had challenged the maintainability of the complaint stating that since the car had been purchased in the name of M/s Continental Electric Store and was registered in the name of the firm and is being used for commercial purpose, therefore, the complainant cannot seek any relief under the Consumer Protection Act?
17. The Ld. District Forum dealt with this question by observing that the Complainant being sole proprietor of his firm and purchased the car for his personal use, may be, also for his business purposes and even the warranty card permits, general commercial use of the vehicle by the owner, and therefore, this objection did not hold water
18. In this respect we have thoughtfully considered the contention of the complainant, we have no hitch to say that the contention of the OPs is liable to be rejected, because a company is a legal entity and the vehicle purchased for the use of its proprietor is not being used for any activity directly connected with commercial purpose for earning profit.
The vehicle is not allegedly being used for hire but admittedly is being used for personal purpose by its proprietor i.e. the complainant. Hence, it cannot be said that the firm of the complainant had purchased the car for any commercial purpose. This view is justified by the judgments of Honble National Commission laid in Controls & Switchgear Company Ltd. v/s Daimler Chrivsler India Pvt. Ltd. & Anr. IV (2007) CPJ 1 (NC) M/s Overseas vs Mercedez Benz in Op-353 of 2001 decided on 5.1.2010 and OP 298 of 2000 in the case M/s Techno Mukund Constructions vs. Mercedez Benz India Ltd. & Anr. decided on 20.1.2011. We, therefore, hold that the complainant is a consumer entitled to file the present complaint against both the OPs namely the appellant and respondent No.2 Issue No.(ii):
19. In the complaint it was alleged that after the delivery of the car in question on 25.1.1995, he found following defects in it:-
On turning the engine, it made heavy noise and that there was a gap between the bonet and the door which was not painted and besides these defects there was heavy water seepage during the rain. These defects were brought to the notice of respondent No.2/OP-2 when the vehicle was brought for its service station and informed both the OPs vide letter dated 4.2.1995.
20.
It is not disputed either before the District Forum or before this Commission that the defects stated above were not reported to them on the above said dates, meaning thereby, that the complainant noted these defects within 8/9 days of the delivery of the vehicle. However, it has to be seen if these defects in any manner can be considered manufacturing defects as alleged by the complainant entitling him for replacement of the vehicle as ordered by the District Forum.
21. The onus to prove that the defects pointed out by him amounted to manufacturing defects solely rests upon the complainant, who had also prayed in his complaint to the District Forum to appoint an independent engineer/surveyor to authenticate the defects and submit a finding about the defects in the vehicle in question.
22. Section 13(1)(C)of the Act provides, that, if a complainant alleges a defect in the goods which cannot be determined without proper analysis or tests, the District Forum shall obtain sample of the goods from the complainant seal it and send it to such laboratory which makes necessary analysis or test with a view to find out, whether such goods suffer from defects as alleged in the complaint, for determining the dispute between the parties.
23. In the Impugned order, it is no where mentioned as to what action on the request for appointing an independent Engineer or Surveyor, as prayed by the complainant, was taken.
24. The appellant in its reply filed before the District Forum while denying that there was any manufacturing defect they pointed out satisfaction note recorded in the job card dated 3.2.1995, no where indicates gap in the bonnet and door and water seepage. Appellants gave no objection to the appointment of independent agency for examining the car and submitting its report for obtaining the report regarding alleged manufacturing defect. The respondent-2 in his reply to the Appeal has also stated that the complainant did not press his prayer for appointment of independent engineer or surveyor through out the proceedings and there being no expert evidence on record to certify that the vehicle in question had any manufacturing defect, therefore, the impugned order cannot be sustained in this case.
25. Having considered the material on record, we find that the respondent -1/complainant could not lead any cogent evidence to prove that the defects pointed out by him in his complaint constitute manufacturing defect. The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is fundamental basic defect which creeps in while manufacturing a machinery. To prove such a defect, opinion of an expert is necessary which is not available in the present case. Reliance in this regard can be placed on a decision of Honble National Commission in Revision Petition No.827 of 2004 and RP No.1318 of 2004 decided on 26.5.2009 (Maruti Udyog Ltd. & Kiran Motors Ltd. vs Hasmukhlal Laxmichand & Anr).
It was held in the circumstances of the said case that there was no manufacturing defect in the car and the Fora below erred in holding to the contrary directing the Petitioner/manufacturer to replace the vehicle with a new vehicle after lapse of so many years. It was observed by the National Commission in that case, the vehicle was sold in the year 1998 and when matter came up before the State Commission, it had already run 20,000 kms. When revision was filed in the National Commission it had run 80,000 kms. And at the time of arguments, it had run approximately 1,20,000 kms which shows that the vehicle was in running condition being in regular use and therefore, question of manufacturing defect did not arise because had there been a manufacturing defect, the car could not have run for nearly 11 years and covered approximately 1,20,000 kms. It was further observed that the complainant was only interested in getting the vehicle replaced which request/wish cannot be granted.
26. Relying upon the above decision, National Commission again re-iterated in Original Petition No.298 of 2000 (M/s Techno Mukund Constructions Supra) that admitted bubbles all over the body of the car and discoloration on the doors and rear hatchback after accident before it was delivered to the purchaser and a minor dent on the left hand side of the rear bumper and fender of the car while taking it to the showroom to the workshop cannot be called manufacturing defects in the vehicle. The facts of the above cited case are quite akin/identical to those of the present case before us.
27. In the present case, it is proved on the record that respondent-1 brought the car to respondent-2 on 3.2.1995 when it had already covered 1754 kms as per the job card dated 3.2.1995 (Annexure H). Again on 20.2.1995, complainant brought the car to the workshop of Respondent-2 when it had covered 2186 kms. As shown in the job card of even date (annexure-K).
Again the car was brought to the workshop on 2.3.1995 having covered 2587 kms. As per Annexure-L. The car was again taken to the workshop on 3.6.1995 having covered 5189 kms as show in (Annexure N). Thereafter the car was taken several times on 15.6.1995, 28.6.1995 & 6.9.1995 always with one or the other complaint having covered 8300 kms. vide (Annexure-T) almost within six months.
This clearly shows that the complainant had been regularly using the vehicle till 15.6.1995 and recording satisfactory note on the job-cards, whenever collected back his car after the problems pointed out by him from time to time, were addressed by respondent-2.
Having used the car for about one year, complainant, then, filed the Complaint before the District Forum on 12.1.1996.
28. Considering the fact that there is no expert opinion with regard to `manufacturing defects, either produced by the complainant or sought by the District Forum, it cannot be held that the defects as alleged by respondent-1, in his complaint constitute manufacturing defect requiring replacement of the vehicle in question, as ordered vide the impugned order.
Issue No. (iii) & (iv):
29. The complainants case is that the defects pointed out by him to the Appellant and Respondent No.2 could not be rectified despite he took the vehicle to the Service Centre of Respondent-2 on various dates since 3.2.1995, immediately after it was delivered to him on 25.1.1995.
This failure on the part of the OPs amounted to unfair trade practice because he was supplied a defective vehicle and since defects could not be rectified, therefore, both of them are also guilty of deficiency in service.
30. It is admitted case of appellant and respondent No.2 that the vehicle was delivered to respondent No.1 by the appellant on 25.1.1995 and prior there torespondent No.2 carried out a pre-delivery inspection of the car on 18.1.1995 & PDI Card (Annexure C) was prepared. It is the PDI (Annexure C)on the basis of which the Ld. District Forum concluded that the vehicle was accidental before it was delivered to the complainant on 25.1.1995.
31. In Annexure-C, it is recorded that the brake drums required skimming and minor denting work on the left front door and mudguard. According to the Appellant and respondent No.2 these were minor alterations and repairs, which occurred during transportation of the car either from the appellants factory to their warehouse or from their warehouse to the premises of respondent No.2. These defects, as held above cannot be considered as manufacturing defects in the vehicle but at the same time fact cannot be ignored that the vehicle had suffered from some damage before it was delivered to the complainant, who had expected that a brand new car free from any defect, which means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard as claimed by the trader in any manner would be delivered to him. Deficiency is defined to mean any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance required to be maintained in pursuance of a contract or otherwise in relation to any service. The term unfair trade practice means a Trade Practice which for the purpose of promoting the sale or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice which gives to the public any warranty or guarantee of the performance, efficacy or length of a product of any goods that is not based on an adequate and proper test thereof.
32. Here in the case before us the vehicle is sold to the complainant with a warranty and guarantee of perfect performance of the vehicle but immediately after it was delivered to the complainant, he found certain defects therein and within a week reported to the OPs who admit that the vehicle was brought to the workshop of respondent-2 several times before filing the complaint which according to them were attended to satisfactorily but providing of such services could not rectify the imperfection in the vehicle. It is noticed for the first time by the complainant, when the copy of PDI (Annexure C) was filed by the OPs on the record that before the delivery of the vehicle to him, it had already suffered some damage, though rectified and considered minor alterations. From the PDI Card (Annexure C) it stands clearly established that the vehicle-in-question when delivered to the complainant was not perfect in the quality as claimed by the OPs. Though there is no material on record to establish that the vehicle had met with accident prior to delivery yet recital in the PDI produced by the OPs themselves is sufficient to prove that the complainant had been supplied the vehicle without some defect. This lone fact constitute deficiency in service and unfair trade practice.
Issue No.5
33. In view of our findings on above issues, it stands established that the complainant/respondent No.1 could not prove any manufacturing defect and therefore, the manufacturer i.e. appellant cannot be held liable in this case. The Respondent No.2/OP-2 has sold the vehicle to the complainant/respondent No.1 which has been held suffering from imperfection amounting to defect which despite their providing satisfactory services could not be removed and hence they alone are liable to compensate the complainant for his suffering, inconvenience and mental agony as can be expected from any reasonably prudent consumer, who purchases a brand new vehicle of a reputed manufacturer but faces problems since from the very date of purchase.
We, therefore, hold Respondent-2, alone liable. Appellant can not be blamed for any unlawful act of Respondent-2 with whom appellant have Principal to Principal relationship.
34. The result of the above discussion is that the order dated 31.1.2000 passed by the District Forum should be modified as under:
1.
Respondent-2 shall pay a sum of Rs.1,00,000/- (Rupees one lakh) as compensation to the Respondent-1 (LR of the complainant) for harassment and inconvenience caused to the complainant.
2. Appeal of OP-1is allowed and it is held that he is not liable for any manufacturing defect in the vehicle in question sold by Respondent-2
3. Respondent-2/OP-2 shall also pay Rs.10,000/- (Rupees ten thousand only) as costs of litigation to the complainant through his LR Respondent
35. Copy of the order be supplied to the parties free of cost. FDR, if any, be returned to the Appellant after completing due formalities.
36. Copy of this order be also forwarded to the District Forum concerned and file thereafter be consigned to the Record Room.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member Arya