CENTRAL AUTOMOBILES vs SIMPLEX ENGINEERING And FOUNDRY WORKS LTD.

SINCE common questions are involved in both these appeals, they are being disposed of by this common order.

THESE appeals under Section 15 of the Consumer Protection Act, 1986 (hereinafter called as ''Act'' for short) are directed against the order dated 8.6.2001 in Complaint Case No. 430/1999 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) allowing the complaint and directing the appellants to rectify the defects in the vehicle purchased by the complainant/respondent herein. Relevant facts no longer in dispute stated in brief are : that the complainant/respondent purchased a Contessa Classic Car from appellant Central Automobiles, the dealer of remaining appellants. The other appellants are the manufacturers and its sales and service department of said vehicle. A warranty was issued regarding the said vehicle, the copy of which is marked as Annexure-A by the District Forum.

According to the averments in the complaint, the said vehicle started developing defects after 3 months of its purchase. The appellants were informed about it. It was also averred by the complainant/respondent, that there was manufacturing defect in the engine. Half of the engine was also changed by the dealer M/s. Central Automobiles, Raipur. However, the car continued to have problems. It did not have proper pickup, there was starting problem, airconditioner was not functioning properly, there was gas leakage, vibration in the engine and the gear box was also making noise.

THE dealer appellant as well as the other appellants resisted the averments in the complaint. According to them the vehicle was purchased by the complainant/respondent which is a Limited Company undertaking commercial activities. THErefore, the complainant was not covered within the definition of ''Consumer'' under the Act. THE complaint was, therefore, not maintainable. It was also averred that the complainant has also not complied with the terms of the warranty and could not therefore, take advantage thereof. Other factual averments in the complaint were also denied by the appellants. The learned District Forum repelled the objections raised by the appellants that the complainant/respondent was not a consumer of the appellants or that the complaint was not maintainable before the Consumer Forum.

THE learned Counsel in these appeals mainly advanced their arguments on the preliminary objections as above. It was submitted by the learned Counsel for the appellants that as per the averments of the complainant itself, the Contessa vehicle was purchased for use by the Managing Director and Owners (presumably Directors) of the Company. It was further averred that the appellant No. 1 has averred and stated on oath that the warranty conditions were not adhered to by the complainant/respondent and, therefore, he was not entitled to avail of the beneficial terms of the warranty. It was, therefore, contended that the complainant/respondent not being the consumer could not seek redressal from the District Forum, by way of complaint under Section 12 of the Act. As against this the learned Counsel for the complainant/respondent supported the impugned order and submitted that the appellant dealer had supplied the complainant/respondent a re-conditioned car which started developing defects from the time of purchase. The manufacturing defects were reported to the dealer and he in turn had also changed half of the engine. Yet the vehicle continued to give troubles which however, have not been attended to by the dealer. Hence the complaint. It was submitted that the complainant/respondent was entitled to approach the District Forum, as there was deficiency in service by the appellants. The main questions that arise for consideration are : as to whether the complainant/respondent could be treated as consumer, and as to whether he had complied with the terms of warranty ?

IT may be noticed in the above context that as per para-8 of the complaint itself, the Contessa vehicle in question was purchased for use of the Directors and Managing Director of the complainant Ltd. Co. Therefore, there appears to be no scope for doubt that the vehicle was purchased for its commercial activities by the complainant Company. IT may be noticed that under Section 2(I)(d)(i) of the Act, a person buying or obtaining goods for commercial purpose is excluded from the definition of Consumer.

THE learned Counsel for the complainant/respondent when raced with the above difficulty submitted that since the vehicle was sold under warranty, hence the complainant/respondent would be treated as consumer. Learned Counsel for the respondent in the above context relied upon the decision of the National Commission in M/s. Jay Kay Puri Engineers & Anr. v. M/s. Mohan Breweries and Distilleries Ltd., I (1998) CPJ 38 (NC)=1996 (1) CPR 1102, wherein it has been held that it is a settled legal position that even where the goods were purchased for commercial purpose, if there is a warranty, as in this case, for its maintenance, the purchaser becomes a consumer in respect of service rendered or to be rendered by the manufacturer or supplier during the warranty period. However, learned Counsel for the appellants pointed out that the essential terms of warranty were not adhered to and complied with by the complainant/respondent, hence he cannot seek benefit thereof. It is pointed out that the appellants in their reply to the complaint, has clearly stated that the car was brought for first service on 28.7.1997 after it had a run of 2732 kms. while the first service should have been availed of after the vehicle had a run of between 800 to 1200 kms. It was also averred that the 2nd servicing was also not availed of as stipulated under the warranty. It was thus averred that in view of the complainant not availing of free servicing within the stipulated running limits of the vehicle and it developed defects, for which the appellants cannot be held liable. It was also submitted that as the conditions of warranty have not been complied, the complainant is not entitled to get the benefit of the same.

It is noticed the no rejoinder or rebuttal of the averments as above of the appellant was made by the complainant/respondent. It may also be noticed that as per Clause-I of the document or warranty (Annexure-A) it was to extend for a period of 12 months or 16,000 kms. whichever occurs earlier from the date on which the car was delivered. It is clear from Clause-7 that three initial services were to be availed after running the vehicle for scheduled kms. a pre-requisite for warranty coverage was that the customer would adhere to the same.

IT is clear therefore, that pre-requisite for the application of warranty was that parties should adhere to the service schedule. From the averments in the reply of the appellants it is clear that pre-requisites were not observed and the terms thereof were breached. That being so, he cannot take shelter of warranty. Learned Counsel for the complainant/respondent also submitted that since half the engine was changed by the appellant/dealer on the complaint of the complainant, the period of limitation of warranty would start from the date of change of the engine. It may be reiterated that the warranty conditions were breached by the complainant/respondent and the car was brought for first servicing after it had run more than 2700 kms. while is was to be availed of after it has run between 800 to 1200 kms.

AS there was breach of terms of warranty and purchase of car was for commercial purpose, complainant/respondent is not entitled to any relief. The complaint was also not maintainable. The learned District Forum erred in ignoring the above vital aspects. In view of the above, the complaint deserves to be dismissed. Accordingly, the appeals are allowed and the impugned order of the District Forum is set aside. Complaint of the complainant/respondent stands dismissed. However, looking to the circumstances of the case, the parties shall bear their own costs of this litigation throughout. Appeals allowed.