Bangalore District Court
M S Cherry Agencies Pvt Ltd vs The Managing Director, Tata Motors on 8 January, 2024
KABC010043982016
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26)
Dated this the 8th day of January, 2024
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.1513/2016
Plaintiff: M/s Cherry Agencies Pvt. Ltd.
A Private Limited Company
having its registered Office at
No.115, LBF Road, Near Minerva
Circle, Bangalore-04, Represented
By its Managing Director
Mr.Rajesh Agarwal.
(By Sri.Rajagopala Naidu, Adv.)
Vs.
Defendants: 1) The Managing Director
Tata Motors, Bombay House, 24
Homi Mody Street, Fort
Mumbai-400 001 by its
Managing Director.
2) M/s Prerana Motors (P) Ltd
Having its registered office at
Veeni Court, 132-15
Lalbagh Road, Bangalore-27
rep. by its Managing Director.
(By Sri Raghunath, J, Adv. For D.1
and Mr.Vikhar Ahmed, B, Adv. For
D.2)
Date of institution of the suit 20.02.2016
Nature of the suit For recovery of money
Date of the commencement 24.03.2017
2 O.S.No.1513/2016
of recording of evidence
Date on which the judgment 08.01.2024
Pronounced
Total duration Years Months Days
07 10 23
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff/Company through its Managing Director against the defendants for recovery of amount.
2. The brief facts leading to the plaintiff's case are summarized as under:
That the plaintiff claims to be carrying on the business in the distribution and dealing in tyres, tubes, pipe sleeves and its allied products. It is stated that during the course of its business the plaintiff was hiring transport/commercial vehicles to supply the products to their clients. The plaintiff said to have thought of buying a vehicle on their own to deliver the goods to their customers and hence, they purchased TATA Super Ace vehicle manufactured by D-1 through its dealer D-2 who delivered the vehicle on 29.09.2014. It has been further carved out that the plaintiff subsequently noticed defects in the vehicle from the day of taking delivery of the said vehicle as the engine was ceasing frequently. The plaintiff has further urged that when this fact was communicated to D-2 it was told that the vehicle being new, after the engine oil settles in the machine, there would not be any problem. However, it is alleged that even thereafter the same 3 O.S.No.1513/2016 problem continued with the said vehicle which had caused annoyance and nuisance to the plaintiff due to which the plaintiff was unable to deliver their products to their clients in time by utilizing the vehicle. The plaintiff Company said to have suffered set back in their business due to this defective vehicle. It is further alleged that even after D-2 repaired the said vehicle there was no improvement in the engine which was ceasing as usual in a span of 7 to 8 months more than 20 times. The plaintiff has further stated that the said vehicle was entrusted to D-2 on 10.01.2015, 12.03.2015, 16.03.2015, 18.03.2015, 24.03.2015, 10.0.2015, 18.05.2015, 17.06.2015 and 13.06.2015. It is further stated that after 13.06.2015 the vehicle has been in the custody of D-2 who has maintained the service history and the same has been sent to the plaintiff through e-mail. It has been further stated that when the vehicle was entrusted to D-2 they instructed to drive it slowly with head lights on and the plaintiff's driver followed the said instructions, but inspite of it the vehicle was troubling again and again when it was driven in a speed of 15-20 kms. It is alleged that the defendants were unable to set right the defect in the engine though it was entrusted to D-2. It is further alleged that on 07.06.2015 the engineers of the first defendant inspected the vehicle at the service station of D-2 and gave opinion that there is in-built manufacturing defect in the vehicle and it cannot be rectified and at their request the vehicle was entrusted to D-2 but however both these defendants could not rectify the said defect in the vehicle and ultimately the engineers of D-1 opined that the entire engine has to be dismantled to replace altogether a new engine. Thus, it is the allegation of the plaintiff that the defendants did not rectify the said defect despite availing sufficient time due to which the plaintiff has undergone heavy loss in their business and spent a sum of Rs.2,000/- per day in delivering goods to their 4 O.S.No.1513/2016 customers. It is alleged that D-1 being the manufacturer of the subject vehicle, has manufactured a defective vehicle and supplied it to D-2 dealer who did not verify the defects in the engine of the vehicle while selling the same to the plaintiff and even after detecting the defect they did not rectify the same as a result of which the plaintiff has to suffer huge monetary loss and hence they issued a legal notice dtd. 16.06.2015 to both the defendants calling upon them to replace the defective engine or else to deliver a new vehicle by reimbursing the loss caused to the plaintiff. It is stated that the first defendant sent an untenable reply to the said notice to which the plaintiff once again sent a rejoinder. It is further stated that the notice sent to D-2 was served by the postal authorities and issued intimation accordingly.
It is further alleged that though in the said notice the plaintiff had requested D-2 to get the vehicle inspected again by D-1 authorities, but D-2 did not reply to the said notice, but on the other hand insisting the plaintiff to take custody of the vehicle from their garage and hence, the plaintiff took custody of the subject vehicle on 10.07.2015 and stationed the same in their garage which has been lying idle as it could not be utilized. Thus, it is the allegation of the plaintiff that the defendants have played fraud on it by supplying a defective vehicle due to which it has to suffer huge loss. Hence, the plaintiff has claimed a sum of Rs.9,87,161/- being the cost of the subject vehicle, interest, damages together with court cost and the current interest @ 2% p.a. from the date of the suit till the realization of the claim amount and hence, the suit.
3. In pursuance of service of suit summons, D-1 and 2 appeared through their respective counsels. D-1 filed their separate written statement denying the claim of the plaintiff. D-1 has contended that it is a renowned manufacturer of various 5 O.S.No.1513/2016 types of commercial vehicles, passenger cars and the vehicles manufactured by it pass through stringent quality checks and road trials before the actual commercial production starts and they are marketed only after being approved by the Automotive Research Association of India. It is further contended that D-1 is ably supported by the excellent dealerships service centers like D-2 having excellent workshops set up for after sales servicing of the commercial vehicles which are manned by qualified and experienced personnel. It is further stated that these workshops provide scheduled services, running repairs, spare parts and provide a good and quality service to the customers. D-1 has however categorically denied the allegations of the plaintiff that the subject vehicle supplied by this defendant was a defective vehicle and had manufacturing defect as alleged by the plaintiff. It is further denied that even after noticing the said defect, the defendants have failed to rectify the said defect etc., as alleged. It is the counter allegation of the first defendant that the plaintiff has alleged regarding manufacturing defect in the subject vehicle without relying on any expert's report from a recognized and notified laboratory and damages are claimed without any documentary evidence. It is further contended that claim of the plaintiff does not fall within the definition of 'civil dispute' as there is no manufacturing defect proved in the vehicle in question. It is further alleged that as the subject vehicle require mandatory servicing and replacement of specified components at the recommended intervals as provided in the service book, the plaintiff has failed to follow the said guidelines and has not followed the operating procedures for maintenance and performance of the vehicle and the plaintiff has not produced any documents to show that he had regularly got serviced the subject vehicle. One more counter allegation made by D-1 is that the 6 O.S.No.1513/2016 plaintiff has tampered the wiring harness to facilitate a light inside the container built by him in the vehicle which has led to malfunctioning of ECU causing problems in electrical sensors, engine light electrical gauge etc. D-1 in this regard has set out the terms and conditions of the warranty card pertaining to the subject vehicle and alleged that the plaintiff has not complied with these terms of warranty. It is further contended that the subject vehicle was supplied after carrying out of Pre-Delivery Inspection by the dealer. It is further contended that the plaintiff has purchased the subject vehicle on or around 29.09.201 from D-2 till 13.12.2016 the vehicle had covered around 55,176 kms which clearly indicates that it is in absolute roadworthy condition and the jobs carried out on the vehicle are minor and running repairs and hence, the refund of the vehicle value claimed by the plaintiff is untenable. It is further contended that even after taking re- delivery of the vehicle the plaintiff was requesting the defendants to carry out the engine replacement free of costs and finally the defendant as a gesture of goodwill, agreed to repair the vehicle free of cost and the same was done on or around 10.09.2015 at 10,581 kms by replacing engine, wiring harness of engine and chasis etc. For these reasons, the first defendant has sought for dismissal of the suit.
4. It is revealed from the records that though D-2 had also filed its written statement through its Assistant General Manager, but the predecessor-in-office of this Court had rejected its WS by his order dtd. 24.03.2021 passed on I.A No.IV and that order has remained unchallenged by the second defendant. Therefore, the defence of this defendant has not been entertained by this court.
7 O.S.No.1513/20165. On the rival contentions of the parties the following issues have been framed :-
1) Whether plaintiff proves that the
defendants have delivered the defective
vehicle?
2) Whether first defendant proves that due to tampering of electrical wiring and poor maintenance by the plaintiff, the vehicle in question leads to malfunctioning of ECU causing problems?
3) Whether plaintiff is entitled for a sum of Rs.9,87,161/- with interest at 24% p.a. from the date of suit till its realization?
4) What order or decree?
6. To substantiate the claim of the plaintiff, its General Manager/Power of Attorney holder has deposed before the court as PW1 and he got marked six documents from Ex.P1 to P6. Per contra, the authorized signatory of defendant No.1 has been examined as D.W.1. He has relied on 8 documents marked from Ex.D.1 to D.8. The first defendant also examined one more authorized signatory who was said to be the Deputy General Manager of D-1 as DW2 and the Customer Support Manager of D-1 is also examined as DW3 through whom 12 more documents were got marked from Ex.D9 to D20.
7. Heard arguments.
8. On hearing and on perusal of the relevant materials and the available evidence on record, the findings of this Court on the above issues are as under:
8 O.S.No.1513/2016 Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : Partly in the affirmative
Issue No.4 : As per final order, for the following:
-: REASONS :-
9. Issue Nos.1 & 2:- Since both these issues are
interconnected, they are tried together to avoid repetition of facts. Before proceeding for further discussions on the claim of the plaintiff, it would be relevant to refer the ground of defence raised by the defendants with regard to the very jurisdiction of this court to try the suit. It is contended that the suit of the plaintiff is not tenable before Civil Court since the dispute involved is one between the Consumer and Manufacturer. Since no documents were produced by the plaintiff with regard to the proceeding before the Consumer Forum which they had referred to in their plaint, the plaintiff was directed to produce documents in this regard. However, the plaintiff's counsel produced the copy of the order sheet in Complaint No.1396/2015 which they had filed before the Consumer Forum. It is revealed from this document that earlier the plaintiff had approached the said Forum against the defendants with respect to the subject matter of the suit and the concerned Forum after perusing the materials came to the conclusion that the dispute is of commercial nature and hence, it had no jurisdiction to try the same and consequently rejected the same. Thereafter the plaintiff came up with the present suit.
10. It is to be noted that neither the plaintiff's counsel nor the defence counsel submitted arguments on the maintainability of the suit. On the other hand, the defendants allowed the matter to be proceeded with. However, the Court has to still consider this 9 O.S.No.1513/2016 legal aspect before the considering the matter on merits. No doubt, the subject vehicle has been purchased by the plaintiff for its business purpose from the defendants who are the manufacturer and dealer respectively of the said vehicle, but it is to be noted that it is a simple suit for recovery brought by the plaintiff on the allegations that on account of delivery of a defective vehicle by the defendants, the plaintiff suffered huge monetary loss. Moreover, though the vehicle was purchased by the plaintiff for its business purpose, but the dispute in question has not arisen out of any commercial transaction or contract between the plaintiff and the defendant. Therefore, the suit filed by the plaintiff before this court is certainly maintainable.
11. It is the specific case made out by the plaintiff Company that it is dealing in the business of distribution of tyres, pipe sleeves and its allied products. It is their further case that during the course of their business, they used to hire commercial vehicles for transporting their products to their customers and accordingly they purchased TATA Super Ace vehicle manufactured by D-1 through its dealer D-2 who delivered the vehicle on 29.09.2014. However, it is alleged that the plaintiff subsequently noticed defects in the vehicle from the day of taking delivery of the said vehicle as, the engine was ceasing frequently. The plaintiff has further urged that when this fact was communicated to D-2 it was told that the vehicle being new, after the engine oil settles in the machine, there would not be any problem. However, it is alleged that even thereafter the same problem continued with the said vehicle which had caused annoyance and nuisance to the plaintiff due to which the plaintiff was unable to deliver their products to their clients in time by utilizing the vehicle, as a result of which they had to suffer huge monetary loss.
10 O.S.No.1513/201612. Per contra, the defendants have categorically refuted all the allegations of the plaintiff except admitting that they had sold the subject vehicle to the plaintiff and that it was brought to them for repairs but they said to have properly attended to it. It is the counter allegation of the defendants that the plaintiff has alleged regarding manufacturing defect in the subject vehicle without relying on any expert's report from a recognized and notified laboratory and damages are claimed without any documentary evidence. It is further alleged that as the subject vehicle require mandatory servicing and replacement of specified components at the recommended intervals as provided in the service book, the plaintiff has failed to follow the said guidelines and has not followed the operating procedures for maintenance and performance of the vehicle and the plaintiff has not produced any documents to show that he had regularly got serviced the subject vehicle.
13. One more counter allegation made by D-1 is that the plaintiff has tampered the wiring harness to facilitate a light inside the container built by him in the vehicle which has led to malfunctioning of ECU causing problems in electrical sensors, engine light electrical gauge etc., and alleged that the plaintiff has not complied with the terms of warranty. It is further contended that the subject vehicle was supplied after carrying out of Pre- Delivery Inspection by the dealer. Therefore, according to the defence of the defendants there was absolutely no defect much less any manufacturing defect in the said vehicle, but the problem started occurring only due to the said tampering of the components of the vehicle by the plaintiff for which they are not liable to compensate him in any manner. In view of these rival contentions of the parties, heavy burden is cast on the plaintiff to prove at the first instance as to whether there was any 11 O.S.No.1513/2016 manufacturing defect in the vehicle due to which they suffered monetary loss and hence, they are entitled to claim the suit claim amount from the defendants.
14. As stated supra, there is no dispute by the defendants that the plaintiff had purchased the subject vehicle from them. The General Manager of the plaintiff Company by deposing himself before the Court, has relied on six documents of which Ex.P1 is the Service vehicle inventory which respect to the last repair work which was attended to the vehicle by the defendants. Ex.P2 is the Job Card with respect to the said repair work. Ex.P3 is the copy of legal notice issued by the plaintiff to the defendants. As regards Ex.P4, it is the reply submitted by the defendants to the said legal notice. Ex.P5 is the postal AD slip produced by the plaintiff to prove that Ex.P3 legal notice was duly served on D-1. Ex.P6 is the rejoinder notice issued by the plaintiff to Ex.P4 reply of the defendants.
15. As against the above oral and documentary evidence placed before the court by the plaintiff, the Senior Manager of D-1 Company has deposed before the court as DW1 and produced 8 documents. Further, the affidavit of the Deputy General Manager of D-1 was though filed towards his chief examination as DW2, but except filing affidavit, he did not turn up for his further evidence. D-1 has also examined its Customer Support Manager as DW3 through whom 12 documents were got marked from Ex.D9 to D20. Ex.D1 to 8 are the photographs and CD showing the subject vehicle and the alleged tampering of wiring in this vehicle by the plaintiff as alleged by the defendants.
16. Ex.D9 is the letter of authority issued to DW3 to deposed on behalf of D-1. Ex.D10 is the letter showing the transfer of DW2 to some other Unit of D-1. As regards Ex.D11 to 12 O.S.No.1513/2016 D11 to D19 they are once again the various photographs of the subject vehicle produced by DW3 and Ex.D20 is the Certificate U/S 65 B of the Evidence Act with respect to these digital photographs. The learned counsel for the plaintiff vehemently argued that the undisputed facts being the purchase of the subject vehicle by the plaintiff, the fact that this vehicle being taken to the defendants on several occasions on account of repairs within the warranty period, the plaintiff could sufficiently discharge its initial burden of proving its case and therefore, the onus shifts on the defendants to prove their discharge from the liability. In this regard he has also invited the attention of this Court to the pleadings of D-1 at para G admitting these material facts. He has also referred to the cross examination of DW1 and 3 in this regard.
17. However, by countering the above argument, the learned defence counsel also urged with some vehemence that since there has been malfunctioning of the vehicle on account of tampering of the components of the vehicle by the plaintiff, it cannot be said that the defendants are liable to compensate the plaintiff. It is argued on behalf of the defendants that the liability of D-1 would arise only in case of inherent defect in the manufacture of the vehicle which is not the situation in the case on hand. In the backdrop of this oral and documentary evidence placed before the Court by both the parties and the submissions made during the course of arguments, now it is to be seen whether the plaintiff is entitled to seek the recovery of suit claim amount from the defendants.
18. Though the defendants have relied on various photographs from Ex.D1 to D1 to D7 and D11 to D19 of the subject vehicle in order to demonstrate that there was tampering 13 O.S.No.1513/2016 of the components of the vehicle by the plaintiff which had led to the malfunctioning of the said vehicle, but as rightly argued by the learned counsel for the plaintiff, from the photographs one cannot come to the conclusion that the said tampering has been done as sought to be depicted from these photographs. Moreover, no report of any expert has been produced before the Court to substantiate this defence. On the other hand, it would be relevant to refer the evidence of DW1 and 3 in this regard wherein they have given some material admissions which would probabalise the claim of the plaintiff.
19. It is contended by the defendants that the plaintiff has committed breach of warranty and service book conditions and it is elicited from the mouth of PW1 that he is aware of the fact that one of the warranty conditions is with regard to the alterations to the vehicle, and that he had got body fixed from the professional fabricator and one bulb was fixed in the body, but whether the said alterations as elicited from the mouth of PW1 had materially affected the subject vehicle leading to its malfunctioning, is the material aspect which has not been proved by the defendants in this case. On the other hand DW1 himself has admitted that he has not produced any documents to show that the plaintiff has committed breach of warranty and this material piece of his admission is found in his cross-examination dtd. 20.09.2019 in para 2 which reads thus:
"I have not produced documents to show that plaintiff has committed the breach of warranty. It is true to suggest that engine replacement was suggested by the work shop".
20. It is further material to note that even in his further cross-examination in para 3 DW1 has not denied the fact that the 14 O.S.No.1513/2016 authorized automobile engineer was deputed to examine the working capacity of vehicle engine or not though he has pleaded ignorance in this regard. The material statements and admissions in his further cross-examination in para 3 run thus:
"I do not know whether authorized automobile engineer was deputed to examine the working capacity of vehicle engine or not.
It is true to suggest that though vehicle was undergone some alteration, we gave free service to uphold our goodwill as per terms of warranty".
21. The above statements of DW1 would clearly indicate that because there were material defects in the subject vehicle, they had provided free service and he has also pleaded ignorance to say whether any authorized engineer was deputed to examine the working capacity of the vehicle. Under such circumstances, it could safely be held that since the defendants themselves had conceded to the fact that the vehicle had some inherent defect, they had attended to it. Without getting examined the vehicle from the expert engineer and without obtaining such report, now the defendants are estopped from contending that the vehicle was materially tampered by the plaintiff and hence, it was malfunctioning.
22. It is further relevant to note that even in the further cross examination of DW1 he could not say as to who had drawn extra wire connection in the subject vehicle. This material piece of his statement is evident from his cross examination dtd. 04.02.2020 in para 4 which reads thus:
"Job Cards are with me. There is no any problem to produce the job cards before the 15 O.S.No.1513/2016 court. Plaintiff did not disclose about connection of extra wire from wiring hardness for lightening a bulb inside the container. Personally I don't know, who has drawn extra lightening wire. It is true to suggest that in Ex.D1 and D2 extra wire connection picture not seen. It is true to suggest that in Ex.D3 picture of extra wire connection is not clearly visible".
23. The above statements of DW1 would once again falsify the defence of the defendants that because of the alleged connection of extra wire by the plaintiff the subject vehicle was malfunctioning. Even in his further cross-examination in para 5 DW1 has admitted that he cannot identify the extra wire connection image separately in Ex.D4. Even otherwise it is to be noted that Ex.D4 to D7 do not reflect the vehicle registration number. It is further to be noted that though DW1 has asserted that he had taken Ex.D1 to D7 from dealer through e-mail correspondence, but he has not produced the said e-mail correspondence. Therefore, mere production of photographs is not sufficient unless they are proved by examining the person concerned before the court.
24. It would be equally relevant to refer the testimony of DW3 who also reiterated the version of DW1. This witness as per his own admission, is not personally aware of the subject matter of the suit. He has also stated that it is the responsibility of the manufacturer to set right any defects in the vehicle within warranty period, but it is subject to adherence to guidelines of the manufacturer. However, it is relevant to note that he has admitted that he has not produced the said guidelines before the court. This witness has also admitted that the plaintiff had brought the subject vehicle to D-2 dealer several times within the warranty 16 O.S.No.1513/2016 period. He has also admitted the various dates on which the vehicle was brought for inspection.
25. It is further pertinent to note that DW3 has also admitted that on 13.06.2015 they had complained about the wiring manipulation by the plaintiff, but in his further cross- examination he has admitted that on the said date as per the job card the vehicle was taken to D-2 due to engine problem. It would be relevant to note the said material statements of DW2 which are found in para 2 on page 24 of his cross-examination which read thus:
" It is true to suggest that on 13.06.2015 we have complained about electric wiring manipulation done by the plaintiff. It is true to suggest that as per the job card it is shown that on 13.06.2015 the vehicle was taken to the workshop of D-2 due to engine problem. On 13.06.2015 the electric wiring manipulation has been noted in the job card. I can produce the said job card after verifying the records in the workshop".
26. The above statement of DW3 once again nullifies their contention that the subject vehicle was brought to the workshop of D-2 on account of wiring manipulation by the plaintiff. If that were to be the case nothing would have prevented him from producing the said job card which alleged to have shown such manipulation. Despite asserting that he can produce such job card, he has not produced the same from which an adverse inference will have to be drawn against the defendants. It is to be noted that the defendants have pleaded their discharge from the liability solely on the ground that the vehicle had no inherent defects but because of the alleged manipulation by the plaintiff it 17 O.S.No.1513/2016 was malfunctioning and to substantiate this fact they have got documents, particularly the said job card referred to by DW3, then the non-production of such material piece of evidence would certainly lead to the inference that their defence is baseless.
27. It is a well settled position of law that where a witness withholds a material piece of evidence which would have thrown light on the disputed issue involved in the suit, an adverse inference will have to be drawn against such non-production, i.e., what has been well settled by the Hon'able Supreme Court in a decision reported in Gopal Krishnaji Ketkar v/s Mohd. Haji Latif in AIR 1968 S.C 1413 as under:
(A)- Evidence Act, Secs. 114(g) and 103-A party in possession of best evidence which would throw light on the issue in controversy withholding it-court ought to draw an adverse inference against him notwithstanding that the onus of proof does not lie on him-Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
28. The above principles have been reiterated by the Hon'ble Supreme Court in a subsequent decision reported in Punit Rai v/s Dinesh Chaudharyuy in IV (2003) CLT 21 (SC) as under:
(ii) Evidence/Election Laws: Party who is in possession of best evidence which would throw light on issue in controversy withhold such evidence, adverse inference U/S 114(g) of evidence Act ought to be drawn against such party notwithstanding that onus of proof 18 O.S.No.1513/2016 may not lie on him [AIR 1968 SC 1413 (relied)].
29. The principles laid down in the above cited decisions could aptly be extended to the facts on hand, because even in the instant case as discussed supra, though D.W.3 has assertively stated that he has got the job cards which would show the wiring manipulation of the subject vehicle by the plaintiff, he has with- held the said material piece of evidence which would have rather supported their defence so as to seek their discharge from the liability. Therefore, an adverse interference certainly requires to be drawn for such non-production of material evidence.
30. It is further relevant to note that as per the specific claim of the plaintiff, the manufacturing defect in the subject vehicle was reported by the Engineers of defendant No.1 themselves by visiting the workshop of defendant No.2 and this fact is also not specifically denied by the defendants. Though D.W.3 in his cross-examination in para-4 has pleaded ignorance about the said fact, even he has not specifically denied the said material fact. It is however admitted by D.W.3 that the said Manager had in fact suggested for replacement of the engine. It would be relevant to refer that material piece of his statements and admissions which are found in his cross-examination dated 30.08.2023 in para-4 on page-25 which reads thus:-
"I am not aware whether D-1 Engineers had visited D-2 work shop for inspection. It is not true to suggest that our Engineers have reported regarding the manufacturing defect in the vehicle. It is true to suggest that they have suggested for replacement of engine. The witness volunteers that for the purpose of maintaining the goodwill of 19 O.S.No.1513/2016 the customers the Engineers have suggested so. Accordingly we have replaced the engine. I have to verify the availability of documents regarding such replacement. The replacement was done in the month of September 2015, before filing of the suit. I have to verify whether the original engine was taken back from the vehicle of the plaintiff".
31. It is pertinent to note that though as per the version of D.W.3 as per the report of their Engineers they have already replaced the defective engine of the subject vehicle, but absolutely no iota of evidence is placed before the court to substantiate this fact. As rightly pointed out by the learned counsel for the plaintiff, even the defendants have not produced any documents to show that by replacing the said engine, the original defective engine was removed and taken back from the subject vehicle. Therefore except the interested version of D.W.3 in this regard the defendants have utterly failed to prove that the defective engine which was suggested to be replaced by their own Engineers, was in fact replaced by them. This fact once again probablises the claim of the plaintiff that despite attending the repair work of the subject vehicle on several occasions and despite their own Engineers reporting about the defective engine, the defendants have miserably failed to set right the said defect, which was reported by the Engineers. Consequently it is to be held that the defendants had in fact delivered the inherently defective vehicle to the plaintiff.
32. If really the vehicle was delivered in a good condition, their Engineers would not have suggested for the replacement of the engine. It is also not their defence that after running the said 20 O.S.No.1513/2016 vehicle by the plaintiff, the engine was damaged on account of the own acts or fault of the drivers of the plaintiff-Company. Under such circumstances in the absence of such contra materials from the defendants, the only inference which has to be drawn is that there was inherent defect in the engine of the subject vehicle since inception. When as per the own admission of the defendants, they had attended the repair works on various dates mentioned in the plaint within the warranty period, then it was their bounden duty either to replace the said vehicle or to replace its engine which was admittedly found to be defective.
33. It is also relevant to note that as per the admission of D.W.3, the plaintiff had purchased the said vehicle for the purpose of their business and D.W.3 has also not specifically denied that due to the engine problem which was detected in the subject vehicle the plaintiff had to hire alternative vehicle by spending amount for transportation of materials though he has once again conveniently pleaded ignorance about the said fact. Therefore when the defendants have failed to establish before the Court that the vehicle was delivered to the plaintiff at the time of purchase in a good running condition and since it is now proved that despite several requests by the plaintiff for its replacement or for replacement of its defective engine, the defendants have not complied with the same. On the other hand it is now proved that they have failed to place before the Court any concrete materials either oral or documentary, to show that the vehicle was malfunctioning solely due to the tampering of the electrical wiring system and poor maintenance of the vehicle by the plaintiff. Therefore both these issues need to be answered accordingly thereby answering issue No.1 in favour of the plaintiff in the affirmative and issue No.2 against defendant No.1 in the negative.
21 O.S.No.1513/201634. Issue No.3:- In view of the findings rendered on the preceding issues, now it is proved that the defendants had delivered an inherently defective vehicle to the plaintiff for their business purpose. They have failed to prove as to how the plaintiff or its drivers had tampered the components of the subject vehicle or that the vehicle was being run in breach of the warranty conditions or in breach of the guidelines provided under the service book as alleged by them. Under such circumstances it is to be held that due to the said defective vehicle, the plaintiff had to suffer monetary loss in running their business.
35. However the plaintiff Company has sought for the recovery of the claim amount of Rs.9,87,161/- along with interest and also for hiring alternative vehicle due to the defect in the subject vehicle. It is relevant to note that they have sought for the amount which is equivalent to the purchase price of the subject vehicle which was said to be Rs.5,01,637/- along with interest @ 24% p.a. from 29.09.2014 till 29.01.2016. They have also sought for additional amount of Rs.3,20,000/- which is according to them, the amount which they had spent for engaging alternative vehicle by spending a sum of Rs.2,000/- per day. It is material to note that except the interested statement of the plaintiff-Company in the plaint which is reiterated by P.W.1 in his oral testimony, not a single scrap of paper is produced before the Court to prove as to whether the plaintiff had to incur a sum of Rs.2,000/- per day by hiring alternative vehicle. It is also relevant to note that though the plaintiff has produced Ex.P.1- service vehicle inventory and Ex.P.2 job card with respect to the repair work of the subject vehicle and the copy of legal notice and reply notice, but no invoice pertaining to the said vehicle has been produced before the Court to show that the subject vehicle was purchased by them for a sum of Rs.5,01,637/-. Even P.W.1 in his testimony has 22 O.S.No.1513/2016 nowhere stated about the purchase value of the subject vehicle nor it was elicited from the mouth of either D.W.1 or D.W.3 but, however there is no specific denial by the defendants in their pleadings that purchase price of this vehicle was as stated in the plaint.
36. Now the next material aspect which invites consideration is as to whether the plaintiff could be held entitled to recover the suit claim amount which is inclusive of the purchase price of the vehicle. It is not in dispute that after purchase of the subject vehicle in the year 2015, the plaintiff had plied the said vehicle for few months which fact cannot be disputed by them. No doubt according to their allegations since inception there was some defect in the vehicle due to which it could not be run properly, but it is not their case that since the date of its purchase, it was to be kept idle because of the said defect. Therefore the claim of the plaintiff that it is entitled to recover the amount including the purchase price of the vehicle cannot be accepted.
37. As regards the claim of interest, though they have claimed that they are entitled for the recovery of the amount along with interest @ 24% p.a., but admittedly plaintiff has no basis to arrive at this rate of interest. There is also no contractual obligation on the part of the defendants to compensate the plaintiff Company along with this rate of interest as there are no written agreements to that effect. However the fact remains that because of the inherent defect which is now proved to have been detected immediately after the purchase of the subject vehicle plaintiff Company had to suffer some amount of monetary loss which aspect cannot be ignored. As discussed supra, since the plaintiff has failed to prove that it had incurred monetary loss @ 23 O.S.No.1513/2016 Rs.2,000/- per day, this court cannot rely on their solitary statement in this regard. Therefore though the plaintiff could be held entitled for the recovery of compensation amount for the loss incurred by them due to the supply of the defective vehicle by the defendants, but the claim put forth by them is proved to be exorbitant and without any basis or supporting materials. Therefore considering the fact that the subject vehicle was purchased for commercial purpose for running the business of the plaintiff Company, this court opines that the defendants may be directed to compensate the plaintiff for supplying such defective vehicle and for the loss incurred by the plaintiff-Company a sum of Rs.6,00,000/- along with a reasonable interest @ !8% p.a. from 29.09.2014 till the actual realization of the above said amount. Hence this issue is accordingly answered in favour of the plaintiff partly in the affirmative.
38. Issue No.4:- In view of the findings rendered on the above issues, it is proved that since the plaintiff-Company has to suffer monetary loss due to the supply of a defective vehicle by the defendants, they were made to approach this Court with the present suit for recovery of the said amount by way of compensation from the defendants by incurring monetary expenditure in the form of payment of court fee and the cost of litigation. Hence the suit deserves to be decreed with cost. In the result, the court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiff-Company against the defendants for recovery of the suit claim amount is hereby partly decreed with cost.
The defendant Nos.1 & 2 are hereby held jointly and severally liable to pay a sum of 24 O.S.No.1513/2016 Rs.6,00,000/- (Rupees six lakhs only) towards damages along with interest @ 18% p.a. from 29.09.2014 till the actual realization of the amount.
Draw decree accordingly.
(Part of this judgment typed by the P.O. directly on the Laptop and continued further dictation to the Stenographer Grade-I, who transcribed the same on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 8th day of January, 2024) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : S.S. Balachandran List of documents exhibited for plaintiff: Ex.P1 : Service vehicle inventory Ex.P2 : Job card Ex.P3 : Copy of legal notice Ex.P4 : Reply notice Ex.P5 : Postal acknowledgement Ex.P6 : Copy of legal notice List of witnesses examined for defendants: D.W1 : G.S. Arjun Kumar D.W2 : Surendra Singh Rawat D.W3 : B. Govindarajan
List of documents exhibited for defendants:
Ex.D.1 to 7 : Photos 25 O.S.No.1513/2016 Ex.D8 : CD Ex.D9 : Authority letter Ex.D10 : Relieving letter Ex.D11 to 19: 9 photographs Ex.D20 : Certificate X Addl. City Civil & Sessions Judge, Bangalore.