Delhi District Court
Kiran Kriplani vs Managing Partner/Proprietor on 5 April, 2016
IN THE COURT OF CIVIL JUDGE10 (CENTRAL)/DELHI
SUIT NO. 395/14
Presided By- SAMAR VISHAL(CIVIL JUDGE)
Unique ID No. 02401C0139692011
MEMO OF PARTIES
Kiran Kriplani
10/18, 1st floor, Old Rajinder Nagar,
New Delhi 110060
......Plaintiff
Versus
1. Managing Partner/Proprietor
Sai Sagar Motors, 2/76, Old Rajinder Nagar
New Delhi60
2. Managing Partner/Proprietor
M/s. Hero Electric, 50, Okhla Industrial EstateIII
New Delhi110020
3. The Secretary (Environment)
Government of Delhi, Environment Building
CGO Complex, Lodi Road, New Delhi 110003
.......Defendants
Date of institution of Suit: 26.03.2011
Date on which judgment was reserved: 18.03.2016
Date of pronouncement of Judgment: 05.04.2016
SUIT AGAINST THE DEFENDANTS FOR RECOVERY OF MONEY AGAINST
THE DEFECTIVE PRODUCT AND COMPENSATION THEREON,
MANDATORY AND PERPETUAL INJUNCTION AGAINST THE
DEFENDANTS.
Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 1/13
JUDGMENT
1. Vide this judgment, plaintiff i.e. Ms. Kiran Kripalani has filed the suit for recovery of money, mandatory and permanent injunction against the three defendants shown in memo of parties.
2. The case of the plaintiff is that the plaintiff has purchased an Electric Scooter of Wave DX Model from the defendant no.1 i.e. the dealer on 08.11.2009 for a cash payment of Rs. 26,260/. Plaintiff submits that it was shown that the vehicle had a mileage of 70 KM per charge and the battery had a warranty of 180 days from the date of its purchase. However, plaintiff found that the product was not, as promised and defects started appearing from the first week of purchase itself. The vehicle was not giving the mileage of 70 KM per charge but it was giving the mileage of 30 KM per charge. The battery started showing signs of defects due to which the battery and its charger were replaced several times.
During the use of the scooter by the plaintiff its part like front bumper, break, etc got damaged which were also got replaced by the plaintiff during the service of the scooter by paying their price. Defendant no. 2 is stated to be a manufacturer of scooter and defendant no. 3 is a Government Department who is giving subsidy on the sale of the Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 2/13 Scooter.
Defendant no. 1 has not filed his written statement and has not defended the suit, therefore he was proceeded exparte as reflected in the order sheet dated 28/11/2013. Only defendants 2 and 3 have filed their written statements.
In the written statement, defendant no. 2 denied the allegations of the plaintiff alleging that the main grievance of the plaintiff is that the mileage of the Scooter was not 70KM per charge. However, that mileage was under standard conditions. Defendant no. 2 has also admitted that the warranty period of battery was 180 days. As far as the replacement and the charger is concerned, it is admitted by the defendant no. 2 stating that the battery was replaced as the good will gesture and the charger replaced at the persistent request of plaintiff even though, they were working perfectly fine along with battery. The damage of certain parts of the Scooter were attributed to the fault of the plaintiff himself. It is further stated that scooter is was of higher quality and ecofriendly and therefore plaintiff is not entitled to any relief as prayed by him in the present suit.
Defendant no. 3 has filed his written statement, stating that there was no privity contract between the plaintiff and the defendant no. 3 and that the subsidy given to the sale of electric scooter was a Cabinet Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 3/13 Decision of Delhi Government.
On the basis of pleadings the following issue were framed for consideration:
i.Whether there is no privity of contract between the plaintiff and the defendant no. 3? OPD 3 ii.Whether the plaintiff is entitled to the recovery of Rs. 2,62,260/ from the defendant no. 1 and 2 along with the pendentelite and future interest? OPP iii.Whether the plaintiff is entitled to the compensation of Rs. 24,000/ from the defendant no. 1 and 2 along with the pendentelite and future interest? OPP iv.Whether the plaintiff is entitled to the mandatory an permanent injunction against the defendant no. 1 and 2 as prayed? OPP v.Whether the plaintiff is entitled to the permanent injunction against the defendant no. 3 as prayed? OPP vi.Relief In order to prove its case, plaintiff has examined her husband as a witness and as her attorney namely Sh. Ashok Kripalani. There is one legal objection taken by the defendant that power of attorney cannot depose on behalf of plaintiff. This issue has been considered but the witness PW2 is the husband of the plaintiff and has Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 4/13 deposed that he has personal knowledge of the case and also used to drive the vehicle. This witness has been duly cross examined and has answered the questions put by defence counsel which shows that he has personal knowledge of the case. Therefore he is considered as a competent witness to prove the case of the plaintiff.
Defendant no. 2 has examined their witness Sh. Rajesh Khullar as D2W1. Both the witnesses have deposed in favour of their respective case and against the opposite party and prooved the documents which are exhibited on record.
I have heard the AR of the plaintiff and counsel for the defendant no. 2 and perused the record during the final arguments. Defendant no. 3 has not prefer to argue and the defendant no.1 was already proceeded exparte.
Myissue wise finding are as follows:
ISSUE NO. 1 and 5
Whether there is no privity contract between the plaintiff and the defendant no. 3? OPD 3 And Whether the plaintiff is entitled to the permanent injunction against the defendant no. 3 as prayed? OPP Both the issues since being connected to the defendant no. 3 are decided jointly. Defendant no. 3 is a Secretary of a Government Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 5/13 Department. No personal relief has been sought by the plaintiff against the defendant no. 2. The only relief sought against the defendant no. 3 is that the defendant no. 3 be restrained from providing subsidy to the defendant no. 1 and 2 for the sale of electric scooter. Otherwise, there is no concern of the plaintiff with the defendant no. 2.
Defendant no. 3 has opposed this relief of injunction stating that providing subsidy for purchasing battery operated vehicles is a policy decision taken by the Cabinet decision which cannot be challenged in the present proceedings. It is also a case of the defendant no. 3 that there is no privity of contract between the plaintiff and the defendant no.
2. Although, defendant no. 3 has not graced the witness box to prove these assertions but the overall pleadings and the evidence led in this case shows that actually there was no contractual relations between the plaintiff and the defendant no. 3. Providing subsidy is a policy decision of Delhi Government cannot be challenged in this Civil Suit only because of the allegations that the vehicle purchased by the plaintiff was defective.
This subsidy was provided to the citizens of Delhi on the purchase of battery operated vehicles for granting concessions on road tax and registration expenses. A large number of people purchase battery operated vehicles and benefits from the subsidy provided by the Government on such products. This privilege which has been extended Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 6/13 to the citizens of Delhi cannot be taken away in the present proceedings which has been filed for the recovery of a purchase money on account of sale of a one defective vehicle. This court has no jurisdiction to interfere and unsettle a policy decision of the government.
Therefore, this issue as well as issue no. 5 is decided against the plaintiff and in favour of the defendant no. 3 on the basis of aforesaid discussion. It is held that there was no privity of contract between the plaintiff and the defendant no. 3 and that plaintiff is not entitled to relief of injunction against the defendant no. 3 as he prayed for in his suit. ISSUE NO. 2
Whether the plaintiff is entitled to the recovery of Rs. 2,62,260/ from the defendant no. 1 and 2 along with the pendentelite and future interest? OPP The case of the plaintiff is that she has purchased an electric scooter from its dealer i.e. defendant no. 1 and manufactured by the defendant no. 2. It was represented by defendant no. 1 and 2 that the vehicle give a mileage of 70 KM per charge but according to the plaintiff the vehicle never give that mileage instead it was giving a mileage of around 30 km per charge. The other allegations the plaintiff are that the battery and charger of the vehicle were also defective and were replaced on the number of occasions. Further, certain parts of the scooter also Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 7/13 got damaged earlier then expected.
As per document Ex.PW2/3 which is a technical specification of the vehicle in question, mileage of the vehicle was shown as 70/100. This has been admitted by the defendant no. 2 in his written statement and is therefore an admitted fact. The only defence of the defendant no. 2 is that this mileage of 70/100 was under standard conditions. However, what are those standard conditions are not stated by the defendant no.
2. Defendant no. 2 only says that the mileage depends on number of factors like manner of driving, road congestion, frequency of breaks, idling, weight being carried, condition of road wind etc. In order to prove, that the vehicle of the plaintiff gave a mileage of 35/100, PW2 has deposed in this regard and proved this fact on oath. There is nothing to disbelieve him on this fact as he was using the vehicle along with his wife nor has anything so startling come in has cross examination to discredit his testimony to this effect. On the contrary, the defendant no. 2 has failed to prove even the fact stated by it in his pleadings that the vehicle was giving a mileage of 70/100, the said mileage was obtained under standard conditions as was done by the others in the automobile industry under ARAI Regulations.
During his cross examination, witness of the defendant no. 2 Rajesh Khullar has stated that the defendant no. 2 have a certificate that Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 8/13 the vehicle gives a mileage 70KM per charge under the standard conditions i.e. a certificate issued by ARAI. However, despite his statement/undertaking defendant no. 2 failed to produce any certificate which is issued by ARAI to show that the vehicle gives mileage of 70 KM per charge. Although, he has produced a photostate certificate issued by ICAT Ex.D2W1/M1 but this document does not show any such mileage as claimed by the defendant no. 2. The burden to prove the mileage as stated in standard conditions was upon defendant no2 as a fact specially within his knowledge. The defendant has therefore failed to prove that this vehicle has a potential of giving a mileage of 70KM per charge even in standard conditions. With this this discussion it seems that there was a misrepresentation on the part of Defendant no. 2 that the vehicle was giving a mileage of 70 km per charge as it hailed to prove this fact. Moreover it is also the duty of defective no. 2 to state explicitly what are the standard conditions in which the vehicle gives a maximum mileage as the consumers have a right to know the technical specifications in normal condition which he is going to purchase. Moreover the standard condition clause or exception should have been clear, conspicuous and unambiguous and should be so written that a purchaser may have sufficient notice of it.
Not only this, it has been admitted by the defendant no. 2 Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 9/13 that the battery as well as the charger of the vehicle has been changed, the battery was changed twice in a span of 5 months i.e. 15.01.2010 and 27.03.2010 as shown in the document Ex.PW2/4 and Ex.PW2/1. The charger was replaced number of times as shown in Ex.PW2/1 and Ex.PW2/8. These are admitted facts and the only defence of the defendant no. 2 is that the battery was replaced as a good will gesture the defendant no. 2 and the electric charger was replaced at the persistent request of the plaintiff.
Plaintiff says that these items were replaced because they are defective. I think that if the defendant has changed or replaced these items it means that there might be some problems with these items, otherwise, there was no occasion for the defendant to replace them. The warranty card of the vehicle shows that it carries a warranty of 360 days from the date of the sale except on fragile parts.
The bills Ex.PW2/2 shows that these items were infact damaged and repaired at the cost of the plaintiff, otherwise it is also an admitted fact as the defendant says that these were not covered within the warranty. The receipts of these items have been proved by the plaintiff as Ex.PW1/11 colly, Ex.PW13 colly and Ex.PW1/24 colly.
As far as the length of the charger is concerned there was no deficiency in the same as the charger was purchased by the plaintiff Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 10/13 after seeing it and the length of the charger which company provides may have standard length and it cannot be increased or decreased at the convenience of the consumer.
The overall appreciation of the evidence, facts and circumstances of the case points out to the fact that the defects as alleged by the plaintiff in the vehicle seems to exists. The defendant no. 2 is unable to show that the defect was either due to the inappropriate handling of vehicle by the plaintiff or that the defendant is not liable to repay the amount of money spent by the plaintiff in purchase of the scooter as the defects suggested did not exists. As far as the mileage is concerned not only the defendant had failed to prove the mileage to be as expressed but I think that in such cases the vehicle company should also give the mileage of vehicle in normal conditions.
Advertisement should not mislead and should give a clear picture of quality of the goods. Not only this the standard conditions should have been indicated so that the consumer is duly informed of the bargain he is in for.
On the basis of aforesaid decision, this issue is decided in favour of the plaintiff and against the defendant no 1 & 2.
ISSUE NO. 3
Whether the plaintiff is entitled to the compensation of Rs. Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 11/13 24,000/ from the defendant no. 1 and 2 along with the pendentelite and future interest? OPP As far as this issue is concerned, I am of the view that besides the recovery with interest of the purchase amount spent by the plaintiff, the plaintiff is not entitled to the relief of damages for the allegedly defective product as it is not in dispute to some extent he has used the product and that the defective parts of the vehicle were replaced by the defendants 1 and 2.
On the basis of aforesaid decision, this issue is decided against the plaintiff.
ISSUE NO. 4
Whether the plaintiff is entitled to the mandatory and permanent injunction against the defendant no. 1 and 2 as prayed? OPP The relief which has been sought by this issue is that the defendant no. 2 be directed to refrain from manufacturing and selling all over the India, the vehicles as similar to the one in question in the present case. Simply because a particular product by a company is defective does not entitled its purchaser to have the company shut and stop production. No such right exists in the plaintiff to have such injunction as she prayed for. The only right which the plaintiff has to have Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 12/13 the redressal of the defective product she has purchased. Since the plaintiff has no such right to get the manufacturing of this item closed, this issue is decided against the plaintiff.
ISSUE NO. 6 Relief Having all said and done, suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendant no. 1 and 2 jointly and severally for the recovery of Rs. 26,260/ along with simple interest of 12% p.a. From the date of filing of the suit till the realization subject to return of the scooter to the defendant no. 1 or 2 at their (defendant no. 1 and 2) cost as the case may be. Other reliefs sought are rejected. Cost of Rs 10,000/ as litigation expenses are also awarded in favour of the plaintiff.
Announced in the open Court (SAMAR VISHAL)
On05.04.2016 CJ-10 (Central)/Delhi
Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 13/13
05.04.2016 Suit no. 395/14
Present: Ld. counsel for the plaintiff.
Ld. counsel for the defendant.
Ld. counsel for the plaintiff has filed the written arguments. Be taken on record.
Put up for judgment at 4PM.
SAMAR VISHAL
Civil Judge10(Central)/THC
05.04.2016/Delhi
At 4PM
Present: None.
Vide separate judgment of even date, suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendant no. 1 and 2 jointly and severally for the recovery of Rs. 26,260/ along with simple interest of 12% p.a. From the date of filing of the suit till the realization subject to return of the scooter to the defendant no. 1 or 2 at their (defendant no. 1 and 2) cost as the case may be. Other reliefs sought are rejected. Cost of Rs 10,000/ as litigation expenses are also awarded in favour of the plaintiff.
Decree Sheet be prepared accordingly File be consigned to Record Room.
SAMAR VISHAL Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 14/13 Civil Judge10(Central)/THC 05.04.2016/Delhi Suit no. 395/14 Kiran Kriplani Vs. Sai Sagar Motors 15/13