HARINI ENTERPRISES vs B.SATYAVANI

THE unsuccessful second opposite party in O.P. No. 341/1993 on the file of the District Consumer Forum, Khammam, is the appellant in F.A. No. 685/1997 before this Commission. THE unsuccessful first opposite party in O.P. No. 341/1993 on the file of the District Consumer Forum, Khammam, is the appellant in F.A. No. 860/1997 before this Commission.

THE facts in brief are, the complainant, a resident of Yellandu X Roads, Khammam Town, purchased an auto bearing No. AP-20/1459, Chassis No. 12264, Engine No. 081662742 manufactured by the second opposite party in June, 1992 from its dealer, the first opposite party. THE second opposite party has got a show room opposite the Sessions Court Building at Wyra Road, Khammam Town. A certificate evidencing the sale of the aforesaid auto was issued in favour of the complainant. The auto could be plied only for a period of two months without any trouble. Two months after its purchase on 27.11.1992, it gave trouble and suddenly came to a halt. It was taken to the show room for necessary repairs; and again the auto was handed over to the complainant''s husband on 16.12.1992 stating that the necessary repairs were effected. But again on 19.12.1992 it gave trouble. One M. Venkata Chary, the mechanic of the show room was taken to the spot where the auto gave trouble. The said mechanic brought the auto to the show room and tried to start it which resulted in the engine getting broken. The proprietor of the second opposite party, who came there later after appraisal of the facts conceded that the fault lies with his mechanic, and promised to effect the necessary repairs. The second opposite party collected Rs. 1,500/- from the husband of the complainant for getting the engine replaced. Afterwards, the mechanic brought some parts and got them fitted to the auto, but even then it started giving trouble. On examination, it was found that only the engine block was changed, and the engine head and other inner parts of it were not changed. Thus fraud was played on the complainant. On intervention of some elders, the second opposite party took away the engine and other defective parts promising that new engine and parts would be supplied after obtaining them from the first opposite party within a period of ten days. The second opposite party afterwards closed its show room and left the place.

The complainant has purchased the auto to improve the economic position of her family by borrowing the amounts. Though no income was derived from the auto, she was compelled to pay interest on the amounts borrowed by her. As the auto could not be plied she sustained a loss to the tune of Rs. 100/- per day. The second opposite party is the authorised dealer of the first opposite party and as such both the opposite parties are jointly and severally liable to pay an amount of Rs. 20,000/- towards compensation as there was deficiency of service by both parties.

THE first opposite party filed its written versions admitting that it is a manufacturer of K.A.L. Autos and that he has not sold any auto to the complainant it is further alleged that the second opposite party purchases autos from the first opposite party and that the second opposite party is not an agent of the first opposite party. Before delivering the auto to the second opposite party, it was thoroughly checked and its roadworthiness was scrutinised; and it was found to be in perfect condition when it was delivered to the second opposite party. THE complainant has not set out sufficient particulars of parts for the alleged failure of the auto. THE first opposite party is not at all liable for any loss or injury suffered by the complainant in any way and there was no negligence on its part. The second opposite party filed his counter. The averments are that the second opposite party is only an agent of the first opposite party and for any mistake in the manufacture of the body or engine of the auto only first opposite party is responsible as a manufacturer and, therefore, no liability can be fixed on the second opposite party. The complainant was plying the auto for commercial purpose through a driver by loading 15 to 20 passengers which is beyond the load bearing capacity of the auto; and that the second opposite party has not collected any amount from the complainant for repairs and that as the complainant has purchased the auto for commercial purpose for earning profits the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act and the complaint is not maintainable. He denied that the complainant was getting Rs. 100/- per day by plying the auto. It is further alleged that there is no deficiency in service and the alleged crack in the body of the engine is only a manufacturing defect and the dealer is not expected to provide any service. Hence, the complaint is not maintainable.

BASING on these pleadings and the evidence adduced on behalf of both sides, the learned District Forum framed appropriate point for consideration, and held that there is deficiency of service, and that both the opposite parties are jointly and severally liable to pay an amount of Rs. 20,000/- to the complainant. Aggrieved by the said finding and order, first opposite party preferred F.A. No. 860/1997 and the second opposite party preferred F.A. No. 685/1997. The point for consideration is whether there is any deficiency in service on the part of the opposite parties; and whether the complainant is entitled for any compensation ? It is not in dispute that the complainant has purchased an auto through the second opposite party manufactured by the first opposite party. It is also not in dispute that the said auto gave trouble from two months after its purchase, and after its repair, when the mechanic of the second opposite party tried to start the engine was broken into pieces. The first opposite party claims that the second opposite party purchases autos from it and sells them to the customers, and the dealings between both opposite parties are only that of two principals. But, Ex. B-1 the letter dated 20.8.1991 addressed by the first opposite party to the second opposite party shows that the second opposite party was only a dealer but not a principal as alleged by the first opposite party. The wording and the letter are important to interpret the relationship between the opposite parties 1 and 2. We hereunder extract the first para of the letter dated 20.8.1991 ; "With reference to your application for KAL Dealership and the dealership agreement entered into between M/s. Harini Enterprises and Kerala Automobiles Limited on 12.8.1991 we have pleasure to appoint you as our authorised dealer for KAL Three-Wheelers and spare parts in Khammam on the following conditions."

Ex. B-1 clearly shows that the second opposite party is a dealer of first opposite party and is an agent. Therefore, it cannot be said that there is no relationship of principal and agent between the first and second opposite parties. The other defence that was raised by the second opposite party is that the auto was purchased for commercial purpose; and therefore, the Consumer Forum has no jurisdiction. In view of the fact that the complainant has admitted that it was purchased for commercial purpose. But it is not in dispute that it was purchased for self-employment. The husband of the complainant was plying the auto. Therefore, the Consumer Forum has jurisdiction to try this case.

THE second opposite party in its counter has admitted that there was a crack on the body of the engine which ultimately led to the breaking of the engine. That admission is sufficient to hold that there was a defect in the engine. Exs. A1 and A2 show the ownership of the complainant. THE complainant has purchased the said auto on 30.6.1992 through the second opposite party. Ex. A-6 is the initial certificate of roadworthiness issued by the manufacturer. Ex. A-9 is the sale certificate.

THE complainant has alleged in her complaint that the second time when the auto broke down somewhere the mechanic of the second opposite party''s show room came there, and took the auto to the show room, and when he tried to start the engine, the engine has broken into pieces. This fact is not controverted by the second opposite party or by its mechanic who started the engine. THErefore, it must be accepted that the engine was broken into pieces when the mechanic of the second opposite party tried to start it. Further the second opposite party categorically admits in its counter that there was manufacturing defect in the engine as there was a crack over the body of the engine. In such circumstances both the opposite parties are liable to pay the damages claimed by the complainant. The District Forum has rightly come to the conclusion that there was deficiency in service by both opposite parties and has rightly awarded compensation. We find no merits in these appeals and both the appeals are liable to be dismissed and they are dismissed accordingly with costs of Rs. 1,000/- each. Time for payment six weeks. Appeals dismissed.