GOVINDBHAI SHANKARLAL And CO. vs Mahindra And Mahindra Ltd

THE complainant is the purchaser of a jeep car. THE opponent No. 1. Mahindra & Mahindra are the manufactures and opponent No. 2 is the dealer of the jeep car. THE jeep car was delivered to the complainant on 28.8.90. for Rs. 175,533/- to which there is no dispute. After the delivery of the jeep car, the same was registered on 30.8.90. On 3.9.90 the engine revealed defects and the same was taken to the garage of the dealer. Para 3 of the written statement of the dealer (Opponent No. 2) reads as under: "It is true that the said jeep reported to workshop of opp. party No. 2 on 3.9.1990 in the evening for the first time at 1046 kms. regarding the complaint of oil coming in the radiator". We therefore, wanted to know the kilometer reading at the time when the jeep car was delivered. Mr. Shah, learned Advocate for the complainant has produced the original operator''s manual and the first page of the said manual requires the dealer to enter the kilometer reading of the vehicle on the date when it is delivered. We had, therefore, taken the xerox copy of the first page of the manual on record. We again enquired from the opponents as to how thus jeep car had been brought to Ahmedabad - whether by road or by rail but the opponents were not in a position to give reply. It is common knowledge that generally vehicles are brought from Bombay by road. THE opponents, for the reasons best known to them have not disclosed the kilometers of the jeep car at the time when delivery was made.

THE complainant has alleged that there was manufacturing defect and to this allegation, the opponent No. 2 dealer with whom the contract has been made has stated in para 3 of written statement as under: "THE Service Engineer of Opp. Party No.1 Ahmedabad visited the workshop of opponent No. 2 on 11.9.90 for checking the above jeep for the complaint reported. After inspection it was opined by him that the Engine Cylinder Block requires replacement under warranty. As suggested by Service Engineer, as the new cylinder block was not available immediately, a service cylinder block Sr. No. 20244 was available immediately by him and work was started on 12.9.90."

THErefore, the jeep-car of the complainant remained in the garage from 3.9.90 to 14.9.90 when the service block was fitted and delivered. It appears that the new engine cylinder block was fitted in the car between 12.9.90 and 31.12.90. Unfortunately, none of the opponents has produced the job card to enable us to find out the date on which the block was fitted and the type of defect and the reparation made by them. But it is not disputed that they had only changed the engine block keeping other things from the car which had been sold to them. It appears that after changing the engine block the jeep car was not working properly and has started giving trouble and it has been taken to the garage of the opponent No. 2 time and again and it appears that thereafter the garage has changed about 10 accessories as shown in type page 5 of the written statement of the opponent No. 2. It also appears that even after changing the cylinder block Assy., piston ring set, gasket cylinder head, con. rod bearing set etc. the jeep car started giving trouble and , therefore, as admitted by the opponent No. 2, the cylinder block which was earlier fitted was replaced with new cylinder block under warranty and other items like piston ring, cylinder liners, main bearing set etc. were replaced and petitioner was not charged for the same. THE repairs were completed on 25.1.91 and the jeep car was again road tested and handed over to the representative of the petitioner. Even though the written statement is little bit confusing, we can arrive at a conclusion as under:- "THE defect was noticed for the first time within 8 days and the jeep car was sent to garage on 3.9.90. THEre is a clear admission that cylinder block required replacement. However, the service cylinder block fitted instead of new one. THEreafter they have changed about 10 items. Whether said 10 items were fitted with the new cylinder block or old cylinder block is not clear but they have in term stated that between 3.9.90 and 31.12.90 these 10 items were fitted with the cylinder block. It also appears in the same para that thereafter new cylinder block which was earlier fitted was replaced with a new cylinder block under warranty and other items like cylinder liners, piston ring, main bearing set etc. were replaced and the job was completed on 25.1.91."

Even after the above changes, the jeep car still started giving trouble and was taken to the garage of the opponent No. 2. Opponent No. 2 has only changed the oil and replaced oil filter and fuel filter. THEreafter according to the opponent No. 2 the jeep-car had done 16000 kms. and the warranty came to an end and, therefore, the dealer refused to pay any attention or repair the jeep-car. It may be mentioned here that according to opponent No. 1, the dealing with opponent No. 2 was that of principal to principal and opponent No. 2 was a contracting party and responsible for the damages. It clearly transpires that the opponent No. 2 refused to repair or pay any attention to the jeep after six months and after the jeep car has done 16000 kms. on the ground that the warranty was extended to that period only even though it has been practically admitted that the jeep car had a manufacturing defect in the engine from the beginning.

Mr. Shah, learned Advocate for the compalinant strenuously urged that the opponent No.2 was a contracting party and is always responsible and liable for any defect in the car which is either disclosed during six months or thereafter since there is always an implied warranty of fitness of the car for which purpose it has been manufactured. He has also urged that under the definition of ''trader'' as given in Sec. 2(1)(q) of the Consumer Protection Act, 1986 the manufacturer is included within the provisions of the definition of trader and is always responsible and liable for damages to the purchaser if there is any manufacturing defect. Hence he has joined both of them as opponents.

THE complainant has entered in the witness box for cross-examination and the opponents have also put their engineers in the box for cross-examination. Unfortunately, both the engineers have shown ignorance of the facts because they had not dealt with the complainant. Somebody else has dealt with and they had signed the written statement only on the information and the source of information has not been disclosed in the written statement nor it has been disclosed in their oral examination. THE evidence of both the engineers has no evidential value and does not support any of the contentions of the opponents. No. job card had been produced, no document has been produced, nobody has cared to examine the jeep-car and those who have examined have not entered in the witness box. In that way there is total absence of evidence of a party having personal knowledge. It appears that the company has relied upon technical pleas rather than factual aspects since the very first report of the opponent No. 2 clearly shows that cyl. engine block was required to be replaced as there was manufacturing defect and that was the report of the engineer of the opponent No. 1. We had, therefore, asked a question to the engineer witness of the opponent No. 1 whether any person would purchase a new jeep-car having a defective cylinder block. He has in terms stated that he may not purchase or the company may not at all deliver such a vehicle. It, therefore, follows that if it comes to the knowledge of the company that a car which has been delivered by the company has a defective cylinder block, the company ought to have withdrawn such a car from the complainant or must have offered atleast a new engine instead of making experiments by changing from one part to another. We, therefore, are of the opinion that since there was no escape for the opponents the opponents have more relied upon technical pleas rather than factual aspects of the matter. Mr. Syed, learned Counsel appearing for the opponent No.1 has vehemently raised three contentions which according to him go to the root of the matter which are as under (1) that the opponent No.1 has its registered office at Bombay and the jeep car has been allotted by the opponent No. 2 at Ahmedabad and not by the opponent No. 1. Therefore, this Commission has no territorial jurisdiction. (2) That the Commission has no pecuniary jurisdiction since the damages claimed are only Rs. 50,000/-. (3) That the complainant is not a consumer because the jeep car has been purchased for commercial purpose of the partnership firm and that there is no privity of contract between the complainant and the opponcent No. 1.

WE shall therefore deal with all these legal contentions in the order in which they are raised. So far the territorial is concerned, it has no merits since the opponent is selling the car through its dealer in Ahmedabad. The car has been purchased in Ahmedabad and the payment has also been made in Ahmedabad. The company has also its Administrative Office in Ahmedabad and Section 11 in terms of the Consumer Protection Act provides that the complaint can be filed at a place where the opponent is carrying on business, has a branch office. The company is carrying on business, has a branch official and also the cause of action has arisen because the company is selling its jeep cars through dealers in Ahmedabad. Whether the relationship between the dealer is that of principal to principal or principal to agent has no relevance so far the business is concerned. We, therefore, reject the contentions raised by Mr. Syed. So far the pecuniary jurisdiction is concerned, it has no merits at all since the complainant has prayed for the replacement of the jeep car which is valued at more than Rs. 175,000/- plus cost and interest.

THE third contention that the jeep car was purchased for commercial purpose requires little more consideration. This contention has been raised by the opposite party No.1 the manufacturer in para 1 (a) of the written statement as under: "THE complainant has admitted that it is a partnership concern and since the same is a commercial organisation carrying on commercial activity, the complainant is excluded from the definition of the term, "consumer''. THE Hon''ble Commission be pleased to consider the decision passed by the Hon''ble National Consumer Disputes Redressal Commission in the case of Oswal Fine Arts v. HMT, Madras (OP 1/1988 decided on 27.4.1989)."

THE opposite party No. 2 has not raised any such contention. Now, the complainant is a partnership firm but under the law the partnership is not a statutory person and the jeep car appears to have been purchased for the convenience of the partners. THE partnership is doing the wholesale business of tea. THE question therefore arises is that if a jeep-car is purchased for the convenience of the partners which has no direct link with the business of tea, can it be said to be for commercial purpose of the partnership. It is true that if the partnership had purchased a van in which the goods are transported or advertised for sale, it can have a direct link with the business activity. In that sense computer can be said to be purchased for professional business activity of the company but purchase of a jeep car for the convenience of the partners or the owners cannot be linked with the activities of the partners. As held by the Hon. Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta, the Consumer Protection Act is enacted for giving protection to the consumers against the exploitation by manufacturers and big business houses. A person buys a car for his transport convenience. If the same is found to be defective, will it be justified to deny the relief merely because the same is purchased from the funds of the partnership which is collectively owned by each partner. Whether the amount is paid by one partner or by more than one partner, to our opinion, makes no difference. Unless the purchase is direct connected with the business activity, which has a link in the business process, we cannot deny the protection of this beneficial legislation if defective goods have been delivered. In these circumstances, we are not able to accept this argument of the opposite party No.1.

SO far as the merits are concerned, we have already stated above that the jeep car had defects from the very beginning and even after the repairs and change of block, the same was not put in the condition of a new jeep car. A person who buys a new jeep car expects that the same will satisfactorily serve him for a long time without causing any trouble. In the instant case, it has started giving troubles and the dealer agreed to repair during the guarantee period only. The guarantee ought to have been considered from the day when last major repair is done. The jeep car has remained for a very long time in the garage and the shaft appears to have been broken down. It shows that there was inherent defect in the machinery to which nobody paid any attention after the alleged guarantee period was over. We are of the opinion that when there is a major defect in the machinery, the guarantee should start from the day when the same is done. The instant case is such a case where the guarantee ought to have been extended. Considering the facts and circumstances of the case, we are neither inclined to pass order for replacement of the jeep car nor for the replacement which must properly fit with the new block. The complainant is also entitled for the compensation for harassment and inconvenience especially when the jeep car has remained under repairs for a very long period from time to time. The complainant must have suffered much inconvenience, pain and harassment. He might have spent sizeable amount for hiring taxi and in such circumstances we shall have only to estimate the damages suffered by the complainant. The complainant must have replaced several parts of the engine. We, therefore, estimate this loss at Rs. 20,000/-. We are also inclined to award him Rs. 5000/- for mental tension, pain and suffering and also cost of this complaint which we estimate at Rs. 3000/-. Though the opposite party No. 2 is not directly responsible for the defects in the jeep car, he being a contracting party, is liable for the-damages. We, therefore, pass the order against both the opposite parties. The opposite party No. 2 may recover his share from the opposite party No.1, if he desires. ORDER The opposite parties shall jointly and severally pay Rs. 25,000/- as damages with 15% interest from the date of complaint till the payment is made and shall pay Rs. 3000/- by way of cost within 4 weeks from the date of receipt of the copy of the order. Complaint allowed.