Alfa Automobiles vs Gopinath Trading Co

THESE appeals have been filed by the appellants under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.2.1996 passed by the learned District Forum, Alwar whereby the complaint of the complainant was partly allowed. As both the appeals have been filed against a common order and both involves similar questions of law and fact, they are being disposed of by this common judgment. Facts of Appeal No. 650/1996:

IN this case, the complainant -firm had purchased a Maruti 800 car on 5.11.1994 from the appellants at a cost of Rs. 1,71,332. The complainant alleged that it had manufacturing defect in its roof panel, the roof panel was made of thin tin sheet, its average fuel consumption was more and because of defect in the construction of the second cylinder of the car, there was leakage of engine oil. The defects were noticed within the warranty perod of one year. She, therefore, filed a complaint in the Forum below requesting for change of the car or to change the engine of his car and roof panel, for controlling the average and for payment of damages on account of mental agony and cost of litigation. The appellants filed a reply in the Forum below that there was no manufacturing defect in the car in question and it is not made up of tin sheet. It was also stated that the car was purchased for commercial purpose and as such the complainant is not a consumer under the Consumer Protection Act.

SIMILARLY , M/s. Maruti Udyog which is manufacturer of car, replied that the roof of the car is manufactured with the imported metal sheet of high quality and there is no manufacturing defect of roof panel. It was also submitted that the fuel consumption is dependent on various factors.

AFTER hering both the parties, the learned District Forum passed the impugned order and partly allowed the complaint in the manner that the O.Ps. shall replace the car with a new car. Aggrieved by this order, the appellants have come up before us in appeal. We have heard the learned Counsel of both the parties and considered the material on record.

LEARNED Counsel for the appellants has submitted that he is a dealer and as such he is not responsible for any alleged manufacturing defects in the car. It was also argued that since the car was purchased for commercial purpose, the complainant is not a consumer under the Consumer Protection Act. It was also submitted that the respondent had not produced any report of the expert to show that there was any manufacturing defect in the car in question and the impugned order deserves to be quashed.

WE have considered the matter. As regards liability of the appellant for any manufacturing defect found in the vehicle, it is trite law that both the dealer and the manufacturer are liable for such defect. (Jose Philip Mampillil v. Premier Automobiles Ltd. & Anr., I (2004) CPJ 9 (SC); Krishan Kumar v. Raheja Automobiles & Anr., I (2003) CPJ 69 (NC). We are clearly of the opinion that the appellants were not the agent of the manufacturer. The appellants had sold the vehicle in question to the complainant on profit. Therefore, the dealer and the manufacturer would be jointly and severally liable for any manufacturing defect in the goods. As regards the purchase of car for commercial purpose by the complainant, it is not in dispute that the claim of the complainant arose during the warranty period of the car. Therefore, the purpose for which the vehicle was purchased is not a relevant consideration under the Consumer Protection Act. If any authority is needed on this settled position in law, reference may be made to the decision in Amtrex Ambience Ltd. v. M/s. Alpha Radios and Another, I (1996) CPJ 324 (NC) and Meera & Co. Ltd. v. Chinar Syntex Ltd., II (2004) CPJ 24 (NC)=2004 NCJ 345 (NC). In view of this, the complainant was a consumer and a complaint by her under the Consumer Protection Act was maintainable.

ON the question of manufacturing defects in the car, the complainant had heavily relied on a report given in the Car Manual by M/s. Gur Jyoti Enterprises, Alwar who had serviced the car on three occasions.The final free service of the vehicle was done on 26.5.1995 when the car had run to 5392 kms. It is not in dispute that the said Maruti Authorised Service Station is authorised to carry out free inspection services and other repairs as per the recommended schedule and prescribed labour rates of the manufacturer.

IN this case, the respondent had given the car to M/s. Gur Jyoti Enterprises for free servicing on three occasions. On the first two occasions, no defect was pointed out by the Service Station but on the third occasion, it had given description of job in the maintenance service record of the cars manual in following terms : ''Checked vehicle and found Eng. Oil consumption and second cylinder (Sparu Plug) Hole thread out of work (poor condition) and Roof Panel may be faulty N -81516 (not uniform).'' The contention of the complainant was that the car was giving low average. The above report does not indicate that the average of the vehicle is low. As such, the allegation of the complainant has not been proved. Moreover, there is no dispute that the fuel consumption is dependent upon various factors like driving habits, driving conditions, adequate maintenance of the vehicle, quality of the fuel, inflation in the tyres of the vehicle, the duration of the use of the vehicle, etc. It is not the case of the appellant that in standard conditions the vehicle showed low average. As such, no manufacturing defect can be attributed on this count.

THE complainant had also complained about excessive consumption of engine oil. The report of the Service Station does not indicate that the engine oil consumption was excessive. Moreover, as also observed by the Honble National Commission in Swaraj Mazda Ltd. v. P.K. Chakkappore & Anr., II (2005) CPJ 72 (NC)=2004 NCJ 177 (NC), the very point of excessive oil consumption could not be said to be a manufacturing defect in the engine.

THE above report also does not state that the roof panel was faulty. The report simply states that the roof panel may be faulty as it is not uniform. The complainant has stated in her pleadings that the roof panel is made up of thin tin sheet. The complainant had not submitted any evidence with regard to the tin sheet used in the roof panel. On the other hand, the appellants had submitted on oath that the roof panel was not made of tin sheet but was manufactured with the imported metal sheet. In such circumstances, the complainant could have proved the alleged manufacturing defect by subjecting the vehicle to inspection by an expert and producing his expert report. But obviously, she has not produced any conclusive report which could establish that the roof panel had any manufacturing defect. This leaves the last defect, i.e., the defect in the second cylinder of the engine for consideration before us. The Service Station has stated in its report that second cylinder (Sparu Plug) Hole thread was out of work (poor condition). It has not been explained anywhere either in the pleadings of the complainant or in the oral or documentary evidence of the complainant as to whether such a defect is major, or whether it cannot be repaired, or that the part complained of can be replaced. It is, however, not in dispute that this defect was only noticed after about six months of the purchase of the car at the time of its third free servicing. Therefore, the defect has been noticed within the period of warrantee and as such was covered by the warrantee given by the manufacturer of the car.

IN this case, the car carried a warranty of twelve months or until the vehicle has been driven for 20,000 kilometres whichever event occurs first. The warranty provided that the vehicle sold by an authorised Maruti dealer will be free, under normal use and service, from any defects in material and workmanship. If any defect should be found in the vehicle within the terms stipulated, its only obligation is to repair or replace any part shown to be defective with a new part or the equivalent free of charge when the defect is attributable to faulty material or workmanship at the time of manufacture.

SINCE it was pure and simple a non -statutory contract, the parties to the lis is governed by the terms and conditions laid down in the warranty. In the present case, the contract between the parties provided for repair or replacement of any part shown to be defective. Therefore, if a part can be replaced for any damage caused within the warranty period, then the order for replacement of the car itself is not warranted under the law. The learned District Forum has failed to appreciate the above legal position and has not considered the case in its right perspective and as such the findings of the learned District Forum cannot be legally sustained.

UNDER the warranty, the appellants are under an obligation to repair the defect shown in the second cylinder of the vehicle free of charge. If, however, the defect cannot be repaired as such, then the appellants are under a duty to replace the part shown to be defective with a new part or the equivalent at no cost to the owner for parts or labour. In the present case, the defect pointed out by the complainant was not offered to be removed even at the time of hearing of the complaint in the Forum below and as such it is clearly a case of deficiency of service on the part of the appellants. We do not want to pass any orders on the question of damages in this regard as there is no appeal by the complainant.

BUT in view of the above, in our considered opinion, the appeal deserves to be partly allowed and the impugned order deserves to be modified. Appeal No. 663 of 1996 : Since Appeal No. 650/1996 is being partly allowed and this appeal also involves the same question of law and fact, it is also to be partly allowed in terms of the decision of appeal No. 650/1996.

ACCORDINGLY , both the appeals aforesaid are hereby partly allowed and the impugned order is modified to the extent that the appellants shall get the repair done to the defects in the roof panel and second cylinder of the engine of the car in question as pointed out by the complainant at no cost to the owner for parts or labour within a week from the date of presentation of the car by the complainant in the workshop of the appellants. In case, however, the above defects cannot be repaired, the appellants shall replace the parts shown to be defective with a new parts or the equivalent free of cost. In the facts and circumstances of the case, there is no order as to costs. Appeals partly allowed.