B.RATNAKAR RAO vs AUTOMOTIVE MANUFACTURERS LTD.

THE Automotive Manufacturers Limited, the Opposite Party No. 1 herein is a company incorporated under the Companies Act, having its Registered Office at Bombay. It is a dealer in motor vehicles. It has a Branch Office situate at Rashtrapathi Road, Secunderabad. THE Opposite Parties 2 and 3 are the Sales Manager and the Assistant Sales Manager of that branch office respectively.

THE complainant approached the opposite parties 2 and 3 for the purchase of a jeep. It is stated in the complaint that the opposite parties 2 and 3 represented to him that if a jeep of "Daman billing" is purchased, it would cost less by Rs. 6,000/- to Rs. 7,000/-. Acting upon their representation the complainant requested them to give quotation for the vehicle CT 640 D.P. 2WD jeep (make Mahindra & Mahindra Daman billing). THE opposite parties 2 and 3 had given a quotation dated December 13, 1988. As per that quotation, the specification of the vehicle is Mahindra CJ 640 DP 2WD jeep complete in all respects with tools and accessories as supplied by manufacturers fitted with puegeot diesel engine." THE price is quoted as Rs. 1,22,272/-. Towards transportation charged Rs. 2,100/- has to be paid to M/s. Western Transport Agency, Bombay. THE payment is required to be made to Automotive Manufactures Limited, Daman payable at Bombay. In addition to the amounts referred to above, the purchaser has to pay Rs. 50/- to the workshop towards handling charges at the time of delivery. It was mentioned in the quotation that if there was any variation in the price between the date of quotation and the actual date of supply of the vehicle, the same shall be to the customer''s account. Under the Self-Employment Scheme, the Andhra Bank, Warangal branch sanctioned loan to the complainant for the purchase of the jeep. While so, the opposite parties 2 and 3 informed the complainant that the price of the vehicle was increased by Rs. 7,810/-. The complainant had obtained a Demand Draft No. 252016. dated February 27, 1989 for a sum of Rs. 1,22,272/- drawn on the Andhra Bank in favour of the Automotive Manufacturers Limited and sent it to the opposite party No. 2. He also obtained another Demand Draft dated February 27, 1989 bearing No. 046092 for a sum of Rs. 7,810/- drawn on the Andhra Bank in favour of the Automotive Manufacturers Limited and handed over that draft also to the opposite party No. 2. Through a letter dated February 28, 1989, the opposite party No. 2 forwarded the two Demand Drafts for Rs. 1,22,272/- and Rs. 7,810/- respectively to the opposite party No. 1. When the complainant requested for immediate delivery of the vehicle, he was directed to approach the Head Office, Bombay and contact one by name, Mr. Vasudevan for immediate delivery of the vehicle. While so, through a telegram dated March 6, 1989, the complainant was intimated that the price of the vehicle was further increased by Rs. 10,166/-. He was accordingly asked to remit that amount along with transportation charges of Rs. 2,100/-. Then, the complainant requested the opposite parties 2 and 3 through the letter dated March 9, 1989 to treat the order placed by him for the purchase of a jeep as cancelled and arrange for refund of the amount paid by him. It is stated in the complaint that, thereafter the opposite parties 2 and 3 persuaded the complainant not to cancel the order assuring him that they will supply the jeep of Daman billing at a price of Rs. 1,32,182/- inclusive of transport, insurance and temporary registration charges. It is the case of the complainant that bonafide believing the said representation made by the opposite parties 2 and 3, he had withdrawn the proposal for cancellation of the order and remitted Rs. 2,100/- towards transport, insurance and temporary registration charges.

A jeep with chassis No. DL 20786 was delivered to the complainant by the opposite parties 2 and 3 on March 17, 1989 at Secunderabad under delivery receipt dated March 17, 1989. Through the letter dated March 17. 1989, the opposite party No. 3 informed the Regional Transport Officer, Warangal that he had delivered one CJ 640 DP 2 WD jeep on March 17, 1989 to the complainant which was a direct supply to him by M/s. Automotive Manufacturers Limited, Daman. The Regional Transport Officer, Warangal was requested to register the vehicle in the name of the complainant. A copy of that letter along with a bill for Rs. 1,32,182/- was forwarded to the complainant

THE delivery receipt issued to the complainant does not bear either the temporary registration number or the mileage covered by the vehicle till the date of delivery. It is stated that the complainant took delivery of the vehicle at Secunderabad bonafide believing it to be a new one directly supplied by the manufacturer. After taking delivery of the vehicle, the complainant got it registered on March 18, 1989 in the office of the Road Transport Authority at Warangal with the permanent registration number AFO 3428. After the vehicle was put into service, the complainant noticed some defects in the vehicle and found it to be not in good condition. He, then, raised protest with the opposite parties 2 and 3 returned the vehicle to them on March 31, 1989, as is evident from the receipt dated March 31, 1989 issued by the Workshop Supervisor of the Automotive Manufacturers Limited, Secunderabad branch. Through the letter dated April 1, 1989 the complainant was informed by the Works Manager of Automotive Manufacturers Limited. Secunderabad branch that the defects pointed out on the vehicle such as crack of right front mudguard and alignment of bonnet and front show will be rectified by replacement of those parts and that the warranty will be extended by additional three months over arid above the normal warranty of 180 days for chassis. It is stated in the complaint that the complainant demanded either for replacement with a new vehicle or for the return of the price and he did not agree for the replacement of the defective parts.

THE opposite parties have filed a counter denying the allegations made in the complaint. By the time the complainant returned the jeep to the opposite parties 2 and 3 on March 31, 1989, he came to know that the vehicle sold to him was in the first instance sold to another person by name Sri B. Jitender Reddy and the vehicle was involved in an accident while it was in transit from Daman to Secunderabad. Therefore, the original purchaser refused to take delivery of the vehicle. The case of the complainant is that the opposite parties 2 and 3 reconditioned and renovated that vehicle and sold it to the complainant as if it was a new vehicle directly supplied by the manufacturer, without disclosing the fact that the vehicle was involved in an accident and thus, the opposite parties 2 and 3 committed an unfair trade practice. Stating those facts, the complainant got the registered notices dated April 10, 1989 and May 1, 1989 issued to the opposite parties. The opposite party No. 2 gave a reply to that notice on May 4, 1989. In that reply notice, he has admitted that the vehicle had met with an accident en-route Secunderabad from Daman. It was mentioned therein that the vehicle was purchased in the name of the complainant at Daman and the temporary registration was taken out in his name. As the vehicle had suffered damage in transit, it was stated that the complainant has to bear the risk and responsibility for the same. He expressed his inability to replace the vehicle with a new one. The complainant has produced a copy of the temporary certificate of registration dated November 30, 1988 issued by the Government of Goa, Daman and Diu in favour of Sri B. Jitender Reddy of Hyderabad valid for ten days in respect of the jeep with engine and chassis No. 20786. The gate pass and the delivery receipt dated December 19, 1988 show that the jeep bearing engine and chassis No. DL 19560 was delivered to Sri B. Jitender Reddy by the opposite parties 2 and 3 herein on December 19, 1988. Those documents clearly establish that the jeep bearing engine and chassis No. 20786 was registered temporarily in the name of Sri. B. Jitender Reddy on November 30, 1988. But, a different jeep with engine and chassis No. 19560 was delivered to Sri B. Jitender Reddy by the opposite parties 2 and 3 on December 19, 1988. There is no dispute that the vehicle sold and delivered to the Complainant is the jeep with engine and chassis is number 20786. It is, thus, evident that the jeep bearing engine and chassis No. 20786 was not purchased in the name of the complainant and the temporary registration in respect of that vehicle was not obtained in his name, though it was mentioned otherwise in the reply notice dated May 4, 1989 given by the opposite party No. 2 to the complainant. The case of the opposite parties that the vehicle sold to the complainant was purchased in his name at Daman and temporary registration was taken out in his name is not correct as is evident not only from the temporary registration certificate obtained in favour of Sri B. Jitender Reddy on November 30, 1988, but also from the fact that the temporary registration certificate in the name of the complainant in respect of the vehicle in question was obtained only on May 10, 1989 long after the vehicle was permanently registered on March 18, 1989 as is evident from the temporary registration certificate produced by the complainant. It may be noticed that the vehicle was registered on March 19, 1989 in the name of the complainant in the office of the Road Transport Authority at Warangal with Registration Number AEO 3428 on the basis of the letter dated March 17, 1989 written by the opposite party No. 3 to the Regional Transport Officer, Warangal and by the date of permanent registration, the temporary registration certificate was not existing in the name of the complainant and it was standing in the name of Sri. B. Jitender Reddy. Thus, it is evident that the vehicle in question was originally purchased in the name of Sri B. Jitender Reddy at Daman and that vehicle was re-sold to the complainant. It is also evident from the documents produced by the complainant that Sri B. Jitender Reddy was delivered another vehicle bearing chassis No. 19560 on December 19, 1988. The opposite party No. 2 has categorically admitted in his reply notice dated May 4, 1989 that the vehicle in question was involved in an accident.

IT is submitted by the learned Counsel for the complainant that the opposite parties had falsely represented to the complainant that the vehicle was a new one directly supplied by the manufacturer and sold a defective, renovated and reconditioned vehicle as if it was a new one without disclosing to the complainant that the vehicle was involved in an accident before delivery.

IT is stated that the complainant had entered into a contract with the National Thermal Power Corporation for the supply of the jeep to them on hire at the rate of Rs. 350/- per day and due to the defects in the vehicle and unfair trade practice perpetrated by the opposite parties in the sale of the vehicle, he had suffered loss at the rate of Rs. 350/- per day. Therefore, he sought either replacement the vehicle with a new vehicle and payment of compensation at the rate of Rs. 350/- per day from the date of return of the jeep, i.e., March 31, 1989 till the date of replacement with a new vehicle or in the alternative for the return of the price of Rs. 1,32,182/- and compensation at the rate of Rs. 350/- per day from the date of return of the jeep till the date of the price. It is, however, submitted by the learned Counsel appearing for the opposite parties that the contract of sale entered into between the complainant and the opposite parties is the one for the sale of unascertained goods and when the purchaser had taken delivery of the goods having been satisfied with the condition of the goods at the time of delivery, such delivery amounted to unconditional appropriation of the goods to the contract and in such a case, the purchaser was not entitled to say that the goods delivered to him were defective. In support of his contention the learned Counsel has placed reliance on the judgment of the Madras High Court in Arun (1953) Private Limited v. State of Madras. That was a case where out of a large mass of imported milk powder, a portion was sold to the buyers. The contract of sale was entered into while the goods were still on the high seas. Thus, the facts of that case were totally different from the facts in the instant case.

It may be noticed that under the provisions of the Consumer Protection Act, 1986, if a consumer complains that as a result of any unfair trade practice adopted by a trader he has suffered loss or damage or that the goods mentioned in the complaint suffer from one or more defects, and if those allegations are substantiated, one or more of the reliefs mentioned in Section 14 of the Act can be granted in favour of the consumer.

FROM the facts and circumstances referred to above, it is established that the jeep bearing engine and chassis No. 20786 was originally purchased in the name of Sri B. Jitender Reddy from Daman on November 30, 1988. A temporary registration certificate was obtained in his name from the Government of Goa, Daman and Diu for a period often days from November 30, 1988. The jeep was involved in an accident when it was in transit from Daman to Secunderabad. Sri B. Jitender Reddy, was delivered another jeep bearing engine and chassis No. KL 19560 on December 19, 1988 obviously because Sri B. Jitender Reddy refused to take delivery of the jeep which was purchased in his name as it was involved in the accident. That very same jeep was later sold to the complainant without disclosing to him that the jeep was involved in an accident The specific case of the opposite parties as stated in the reply notice dated May 4, 1989 issued by the opposite party No. 2 to the complainant was that the jeep in question was purchased in the name of the complainant at Daman and temporary registration certificate was taken out in his name. That version of the opposite parties is blatantly false. The temporary registration certificate in respect of the vehicle in question was in the first instance obtained in the name of Sri B. Jitender Reddy on November 30, 1988 for a period of ten days and it was later obtained in the name of the complainant from the Government of Goa, Daman and Diu only on May 10, 1989 whereas the vehicle was delivered to the complainant on March 17, 1989 and it was registered with permanent registration number AEO 3428 on March 18, 1989 in the Office of the Road Transport Authority, Warangal on the basis of the letter dated March 17, 1989 written by the opposite party No. 2. The opposite parties admitted in the reply notice that the vehicle was involved in the accident before delivery to the complainant. The fact that the vehicle was involved in the accident before delivery was within the exclusive knowledge of the opposite parties and they did not disclose that fact to the complainant at the time of the delivery of the vehicle to him. They falsely represented to the complainant at the time of delivery that the vehicle was a new one directly supplied by the manufacturer. From the facts and circumstances, it is also evident that the vehicle was reconditioned and renovated after the accident and it was sold as a new vehicle to the complainant. The opposite panics have admitted in their letter dated April 1, 1989 that the vehicle was defective with the crack of right front mudguard and alignment of bonnet and front show and have agreed to replace those parts.

AS provides under Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969, the practice of making any statement whether orally or in writing or by visible representation which either falsely represent that the goods are of a particular standard, quality or grade or which falsely represents any rebuilt, renovated or reconditioned goods as new goods amounts to unfair trade practice. The jeep in question was originally purchased by Sri B. Jitender Reddy. As he refused to take delivery of the jeep because it was involved in an accident during transit from Daman to Secunderabad, that jeep was sold to the complainant by the opposite parties, falsely representing that it was a new jeep directly supplied by the manufacturers, without disclosing the fact that the vehicle was involved in an accident. Without obtaining any temporary registration certificate in favour of the complainant, the opposite party No. 3 had directly written a letter on March 17, 1989 to the Regional Transport Officer, Warangal stating that the jeep was delivered to the complainant on that date and the same may be registered in his name. A copy of that letter was marked to the complainant along with a bill for Rs. 1,32,182/- as if it was a bill issued by the Automotive Manufacturers Limited, Daman. According to the complainant, that bill was issued by the Branch Office of Automotive Manufacturers Limited, Secunderabad in the name of the Automotive Manufacturers Ltd., Daman to make it appear that the vehicle was purchased in the name of the complainant at Daman. The genuineness of that bill is belied by the temporary registration certificate obtained in the name of the complainant only on May 10, 1989 long after the bill was issued to the complainant. All those facts clinchingly establish that the opposite parties adopted unfair trade practice in selling the vehicle to the complainant It is admitted by the opposite parties as is evident from the inspection report dated April 1, 1989 that the vehicle was defective with the crack of right front mudguard and alignment of bonnet and front show. This fact coupled with the administration of the opposite parties that the vehicle was involved in accident before delivery to the complainant clearly establishes that the vehicle was defective at the time of delivery.

SECTION 3 of the Consumer Protection Act specifically provides that "the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." Any consumer can file a complaint under the provisions of the Act seeking appropriate relief if the goods purchased by him suffer from any fault, imperfection or short coming in the quality or as are sult of any unfair trade practice adopted by the trader, the complainant has suffered loss or damage. In such a case the complainant is entitled under the provisions of the Consumer Protection Act to seek appropriate relief.

THE complainant sought relief of replacement of the vehicle with a new vehicle of similar description without any defect or in the alternative for return of Rs. 1,32,182/- being the price and other charges paid by him and for compensation at the rate of Rs. 350/- per day from March 18, 1989 till the replacement with a new vehicle or return of the price of Rs. 1,32,182/-. It is averred in the complaint that the vehicle was purchased by availing the loan from the Andhra Bank under the Self-Employment Scheme with interest at the rate of 12.5% per annum. It was further stated in the complaint that the complainant had negotiated with the National THErmal Power Corporation for hiring of the vehicle at the rate of Rs. 350/- per day and due to the supply of a defective vehicle and adoption of unfair trade practices by the opposite parties, the complainant was put to loss at the rate of Rs. 350/- per day. Thus, a claim is made for payment of compensation at the rate of Rs. 350/- per day for the loss suffered by him. From the letter of sanction dated February 22, 1989 of the Central Office of the Andhra Bank. Hyderabad produced by the complainant, it is evident that a term loan of Rs. 93,000/- was sanctioned to the complainant for the purchase of Mahindra CJ 640 D.P. 2WD jeep with interest at the rate of 12.5% per annum. The complainant paid Rs. 1,32,182/- towards the price and other charges to the opposite parties for the purchase of the vehicle. It is the case of the complainant that he had negotiated with the National Thermal Power Corporation for hiring of the vehicle at the rate of Rs. 350/- per day and due to the defects in the vehicle, he was put to loss at the rate of Rs. 350/- per day. T he vehicle was delivered to the complainant on March 17, 1989. After noticing the defects, the complainant returned the vehicle to the opposite parties on March 31, 1989 with a request to the opposite parties either to replace the vehicle with a new vehicle of same description without defects or to return the price paid by him. The opposite parties neither returned the price nor replaced the vehicle with a new one. The complainant had borrowed Rs. 93,000/- from the Bank for the purchase of the vehicle with interest at the rate of 12.5% per annum. He purchased the vehicle for the purpose of plying it on hire. Due to the defects in the vehicle, the complainant could not use the vehicle from April 1, 1989. There can be no dispute that due to the unfair trade practices adopted by the opposite parties in the sale of defective vehicle, the complainant has suffered loss.

Having regard to the facts and circumstances referred to above, we are satisfied that the complainant has suffered loss due to the unfair trade practices adopted by the opposite parties in the sale of a defective vehicle to him. Taking into account all the relevant consideration, we determine the compensation at Rs. 200/- per day payable from April 1, 1989.

WE direct the opposite parties shall replace the vehicle with a new vehicle of same description without any defects or return to the complainant the amount of Rs. 1,32,182/- paid by him towards the price and other charges to the vehicle, within eight weeks from the date of this order. We further direct the opposite parties shall pay compensation to the complainant at the rate of Rs. 200/- per day from April 1, 1989 till the date of either replacement of the vehicle or the return of the price and other charges as directed above.

THE opposite parties shall pay to the complainant the compensation as directed above payable till the date of this order within four weeks from today. THEy shall continue to pay every month the compensation calculated at the rate of Rs. 200/- per day till either the vehicle is replaced with a new vehicle or the return of the price and other charges to the complainant as directed above, on or before tenth of each succeeding month. The opposite parties are further directed to pay Rs. 500/- to the complainant towards costs. Appeal allowed.