BHOPAL MOTORS PVT LTD vs Saudan Singh

HEARD the learned Counsel.

THE petitioner is aggrieved by the order passed by the State Commission confirming the order of the District Forum and dismissing the appeals. The District Forum passed an order directing the petitioner either to replace the vehicle in question or to pay its price of Rs. 3,02,610 along with bank interest and Rs. 30,000 for mental agony with cost of Rs. 1,000. The facts in brief giving an occasion to file this revision petition are as under: on 18. 9. 2007 the complainant had purchased a commander jeep from the petitioner for a sum of Rs. 3,02,610 by taking a loan from the bank. The vehicle had been sent to the petitioner for making the rectification from time-to-time and the petitioner had changed the new engine by putting the old engine without permission/sanction of the RTO. But even thereafter the defect continued and the vehicle was lying idle. It was alleged that there was a manufacturing defect. The complainant claimed commercial loss @ Rs. 600.

The petitioner contested the matter inter alia on the ground that the new vehicle was sold by the petitioner and there was no manufacturing defect. The engine of the vehicle had not been changed. The vehicle was taken by the complainant after checking the vehicle. The petitioner had also taken the objection in regard to limitations as well as jurisdiction and demand of compensation of Rs. 20,000.

HOWEVER, the petitioner remained absent since 30. 6. 2000 and did not file any affidavit before the District Forum. The District Forum accepted the evidence led by the complainant in absence of any affidavit evidence from the side of the petitioner and granted the relief as aforesaid. The petitioner as well as the complainant both filed cross-appeals against the order of the District Forum. Both the appeals, the appeal of the petitioner as well as by the complainant for enhancement had been dismissed.

IT has been submitted by the learned Counsel for the petitioner that the petitioner as a dealer could not be held responsible for manufacturing defect and as such not liable to pay. Learned Counsel challenged the report of the Head Mechanic, PWD obtained by the District Forum under Section 13. The next submission related to clause of warranty for replacement of the part and learned Counsel in this connection relied upon the judgment in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra and Anr. , II (2006) CPJ 3 (SC)= (2006) 4 SCC 644. As regards manufacturing defect, in ordinary course, if the dealer acts just as an agent of the manufacturer, he could not be held liable for the manufacturing defect and the liability would be that of manufacturer. But in case where the independent dealership without there being any agency of the manufacturers, vehicles are purchased for the purpose of sale, then the dealer cannot escape from the liability in respect of even manufacturing defect for he was supposed to see at the time of taking the delivery that the vehicle did not suffer from any manufacturing defect. In the case in hand, it would be appropriate to refer to para 3 and para 23 of the Dealership Agreement to appreciate about legal relationship, which read as under-"3. Placing of Orders; Prices-The Dealer will place orders with the company for acceptance covering its requirements for such period of time as the Company may designate and the Company shall sell the products to the Dealer in accordance with the orders accepted at such Dealers'' Net Prices ex the Company''s storage points as the Company shall from time-to-time fix. Net Dealers'' Price Lists will be furnished to the Dealer by the Company but the Company reserves the right to change prices at any time without notice. The Dealer will pay for the Products the Company''s established Net Dealer''s Prices in effect on the date of despatch. Packing and other charges as well as excise duty, octroi duty and other taxes levied either by the Central or State Government or local authorities or bodies shall be charged extra. All or any of such duties, levies etc. may at the option of the Company be charged as separate items in addition to the Net Dealers Price or may be merged with the Net Dealers'' Price. All orders from the Dealer shall be subject to the terms of this agreement. " "23. Legal Relationship-The Dealer is not and shall not be agent of the Company for any purpose and the Dealer has no right or authority to assign or create any obligation of any kind express or implied, on behalf of the Company to bind the Company in any way to accept any service or process upon the Company or to receive any notice of any nature whatsoever. " (Emphasis supplied) If we take into consideration the terms and conditions, they are self-explanatory. Every risk is that of dealer qua the consumer and the dealer like the petitioner cannot escape the liability even in respect of manufacturing defect.

AS regards the manufacturing defect, the manufacturing defect is virtually admitted when the petitioner changed the half engine within one month from the date of purchase but the defect continued. There is a detailed report of the Head Mechanic, PWD Division called from the District Forum on record, which reads as under: "the President, consumer Disputes Redressal Forum, vidisha. Subject: Inspection Report of Vehicle No. Jeep M. P.-04-H-5852 ref. : Letter No. 920 dated 13. 7. 2000 as per above subject and letter under reference according to the purchaser, the inspection of the Jeep No. M. P. 04-H-5852 has been got done examined by the Jeep owner. After examination/inspection the report is submitted as under: 1. Engine No. D. V. 262822 is put in the Jeep that is not the punching made by the machine of the company. 2. Chassis of the Jeep is cracked at its right hand and the Chassis is destructed/twisted and two kinds of colours are painted in the Chassis Half black and half primer is painted. While there comes apparent only one colour from the company. 3. Gear Box of the Jeep, gears which run in the Hosing, that is not getting it run by making centre due to which there becomes wear and tear (breakage) in the Gear Box. 4. At so many places the wiring of the Jeep is tapped (at various places the tapes are put affixed on the wires ). At any time it may be getting shot. And at any time fire may set in the vehicle. 5. Jeep is making much more bubbling. 6. If the Jeep is completely made in new condition then so much amount would be spent as in such an amount a new Jeep may be purchased. 7. Self, Altimeter is defective. Special note: i, the applicant having twenty years'' experience. Whatever even quantity Jeeps are arrived/attended in the Government Workshop, there becomes the wear and tear therein only about after a run of ten thousand kilometres only. Date:17. 7. 2000 (Harishankar Sahu) Head Mechanic, PWD E/m, Vidisha (M. P)"

CONTRARY to the aforesaid evidence, no evidence has been led by the petitioner for the petitioner remained absent. The vehicle was purchased for running as a taxi under the Prime Minister Scheme for unemployed youth. Obviously loan had been taken for the purpose of earning their livelihood. As such there could not be any dispute even about the fact that the complainant was a consumer.

One of the pleas taken was that lack of jurisdiction. But Bhopal Motors Ltd. themselves were selling the vehicle at Vidisha and Vidisha also falls within their own territory of the dealership. As such there could not be any dispute about jurisdiction with regard to the observations of the State Commission insofar as territorial jurisdiction is concerned. On this score, we accordingly do not see any reason to interfere with regard to view taken by the State Commission.

INSOFAR as the plea based on the judgment in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra (supra), that the vehicle could not be ordered to be replaced, the facts of that case were totally different. The defects found, related to clutch assembly and in that context the case was decided. But even in that case apart from the replacement of the clutch assembly, a consolidated sum of Rs. 50,000/- was awarded for cost of travel to Karnal, etc. In the present case, it may be mentioned that the vehicle was purchased after taking a loan from the bank and for earning their livelihood and the livelihood has been lost due to the inaction on the part of the petitioner. Prime Minister''s Scheme for providing employment to unemployed youth had been frustrated insofar as the complainant was concerned. Besides, it is mentioned in report of the Head Mechanic that if the jeep was required to be repaired instead of replacement, etc. , it would be almost equal to cost of the new jeep. Seen in this light the order of replacement by M/s. Bhopal Motors or the payment of price 3,02,610 with bank interest, as has been ordered by the District Forum and cost of Rs. 1,000 and Rs. 30,000 as compensation, would not be on high side, rather, it would indicate that the Fora below had shown some indulgence to the petitioner. Consequently, we do not feel that any interference is called for in the impugned order.

FOR the aforesaid reasons, revision petition is dismissed accordingly revision Petition dismissed.