JAI DEV SHARMA vs WHEEL WORLD, STAFFROAD, AMBALA CANTT.

THIS case stands concluded in favour of the complainant by the earlier detailed order of this Commission in Complaint Case No. 25 of 1991, Surinder Singh of Chandigarh v. M/s. Wheel World, Ambala Cantt. &. Ors., decided on the 18th of May, 1992. It therefore, suffices to notice the facts and the merits with relative brevity.

SHRI Jai Dev Sharma, complainant had purchased a Montana (diesel) car for Rs. 1,28,000/- from M/s. Wheels World, Staff Road, Ambala Cantt. on the 6th of July, 1990: The vehicle was insured on that very day with M/s. United India Insurance Company Ltd. Ambala Gantt. and the car was registered as HR-16-1933. The said vehicle was duly got serviced by the authorised dealers of opposite party No. 1 at Rohtak and it is the stand that from the very beginning it disclosed inherent defects. However, on the 17th of September, 1990, the vehicle stopped dead on the road and apparently because it was beyond repair, it had to be loaded in a truck and brought to the premises of M/s. Wheels World, Staff Road, Ambala Cantt. They took it over for executing the necessary repairs. However, for well nigh three months, the said car could not be repaired despite repeated entreaties of the complainant. To crown it all, on the 11th of November, 1990, a fire broke out in the premises of opposite party No. 1 and the vehicle was virtually burnt down. Thereafter, opposite party No. 1 asked the complainant to complete the formalities regarding the insurance claim and despite his earnest efforts to have the matter finalised, the same could not be done for almost one year thereafter. On the 22nd of January, 1992, the complainant received a letter from the Insurance Company, opposite party No. 3, asking for some further documents which were supplied. But because of the lack of cooperation by opposite party No. 1, no redress was made available to the helpless consumer-complainant. After waiting for a well nigh one year and six months, from the date of the delivery of the vehicle to opposite party No. 1, the complainant has been compelled to knock at the door of this Commission for relief. In terms, the cost of the car i.e., Rs. 1,28,000/- alongwith the loss of accessories, expenses, mental harassment etc. a total claim to the tune of Rs. 1,87,000/- is raised. In the written statement filed on behalf of opposite party Nos. 1 and 2, some preliminary objections have been taken to which a reference is unnecessary because they were not seriously pressed. On merits, the sale of the car to the complainant was admitted and also the fact that on the 17th of September, 1990, the vehicle could not be started and was loaded from Rohtak and finally left with opposite party No. 1 for purposes of repairs. The complainant was informed about the serious defects in the engine and assurances were held out for doing the needful and delay was sought to be explained on the ground of short supply of vehicle spare parts. Para No. 4 of the complaint was admitted whilst the averments in para 7 were partly admitted. Whilst controverting paragraph Nos. 5 and 6, the liability was sought to be shifted on the shoulders of the insurers. Liability was attempted to be evaded on the ground that the vehicle was delivered to opposite party No. 1 but the warranty period stood expired. It was further admitted that a fire broke out in the premises of the opposite party No. 1 but apparently because the defective engine had been removed from the body, the same escaped the damage whilst the rest of the car burnt down. It was the plea that the price of the said engine assembly is Rs. 37,000/- and were ready and willing to deliver the same over to the complainant. On these grounds, responsibility was evaded on the part of opposite party No. 1 whilst virtually making no relevant averment on behalf of opposite party No. 2. In essence, the burden was sought to be passed on to opposite party No. 3, the Insurance Company.

In the written statement filed by the respondent No. 3, the substantial parts of the complaint were admitted whilst asserting that as insurers they have done the needful. It was stated that immediately on receipt of information with regard to the damage to the vehicle by fire, the insurer deputed Shri K.C. Gupta, Surveyor and loss assessor to determine the same. From his report it was found that the engine assembly of the car was separated from the body and the same was not at all affected by fire. Plea is taken that the requisite documents were not submitted by opposite parties Nos. 1 and 2 and also the complainant and consequently there was no deficiency in the services which the insurers had undertaken.

IN the replication filed by the complainant, he stoutly reiterated his earlier stand. It was categorically asserted that the vehicle did not cross 8,000 kms. when it was redelivered to opposite party No. 1 and was otherwise within warranty period of time. It was also highlighted that the car could not be repaired for three months and more and was obviously beyond rectification. It was repeatedly re-asserted that the vehicle was within the warranty period and therefore, it was accepted by opposite party No. 1. In support of the complaint, reliance was placed on documents Annexures P1 to P9 annexed with the complaint the authenticity of which was not challenged. The complainant put in his detailed affidavit evidence to re-assert the averments made in the complaint. In his detailed cross-examination by the learned Counsel for the opposite party Nos. 1 and 2 nothing worthwhile could be elicited in their favour. Instead the same appears to have boom- ranged on the case. Therein, he asserted that the loss or damages were payable by M/s. Wheels World, Ambala Cantt. because the vehicle had been delivered to them three/four months earlier and when it was so re-delivered, the same was well within the warranty period.

SOMEWHAT surprisingly despite a number of opportunities repeatedly afforded to opposite party Nos. 1 & 2 no evidence whatsoever was adduced on their behalf. Though their learned Counsel stated at one time that the evidence by way of affidavits would be filed but despite adjournments no one on their behalf either chose to put in affidavits or stepped in the witness box to rebut the complainant''s case. It is somewhat manifest that in this situation the opposite party Nos. 1 and 2 have only to blame themselves for letting their case to go by default. On behalf of opposite party No. 3, the detailed report of Shri K.C. Gupta, Surveyor and loss assessor was annexed to the written statement. Therein, he had opined that because of virtual inability of opposite party Nos. 1 and 2 to repair the car and the fact that it had been burnt down, the case of the insurer must be considered on a total loss basis. He also opined that the car was under warranty and despite the obligation of the manufacturers as their authorised dealer had not put it in a roadworthy condition at all after it was brought to him loaded on a truck. He also opined that the vehicle had major manufacturing defects which rendered it beyond repairs and the engine of the vehicle had been removed therefrom and had remained safe from the fire. Ancillary documents Annexures R. 1 to R. 4 were also placed on the record. The evidence of Shri K.C. Gupta, surveyor and loss assessor and Mr. Y.P. Minglani, Branch Manager, United India Insurance Company Ltd., Ambala Cantt. was put in by way of affidavit and both of them were cross- examined at some length by the learned Counsel for the complainant. In the light of the above, the material part of the complainant''s case against the opposite party Nos. 1 and 2 stand virtually admitted, established or unrebutted. It appears that they have allowed their case herein to go by default apparently because it had no legs to stand upon. Even the evidence adduced on behalf of the opposite party No. 3 including the testimony of Mr. K.C. Gupta and his report would show that well within the warranty period, the car was brought to the premises of opposite party No. 1 after its engine had stopped working totally, and the car had to be loaded in a truck. It is further manifest from this independent source that during the course of his inspection, he found that the car engine assembly had to be taken out of the body of the car and was kept elsewhere from the scene of the fire and had remained undamaged. He also opined that there were basic manufacturing defects in the vehicle and it could not be repaired or made roadworthy despite having lain at the premises of opposite party No. 1 for nearly three months. It is otherwise not in dispute that the car had remained in the premises of opposite party No. 1 and was damaged and destroyed therein whilst its engine assembly had escaped the ravages of fire which had occurred on the 11th of December, 1990.

IN the written statement of opposite party Nos. 1 & 2 it is virtually the admitted position that the engine assembly had been taken out of the vehicle and they had been offered to re-deliver it to the complainant. Apart from Mr. K.C. Gupta, Mr. Y.P. Minglani in his affidavit reiterated that there were manufacturing defects in the engine assembly of the car and therefore, the liability of the INsurance Company was evaded on that score. IN their cross- examination, neither the complainant nor Mr. K.C. Gupta and Y.P. Minglani, were at all challenged on the score of the car having inherent manufacturing defects therein which rendered it not roadworthy virtually from the date of its delivery and that later it had had stopped dead at Rohtak and had to be loaded in a truck to be brought to the dealer.

ON the present record, it is thus admitted or established that the relevant Montana car was purchased for Rs. 1,28,000/- and insured and taken delivery on the 6th of July, 1990. It was brought back on a truck and re-delivered at the premises of M/s. Wheels World, Ambala Cantt., well within the warranty period of six months and equally within the mileage of 8,000 Kms. Opposite Party No. 1 had accepted the vehicle and apparently undertaken to make it road-worthy but failed to do so for more than three months thereafter. The engine block had to be taken out of the vehicle and therefore, escaped damage whilst rest of the car was virtually destroyed or damaged beyond redemption in the premises of M/s. Wheels World on the 11th of December, 1990. The said premises were insured against the; risk of fire, and lastly the learned Counsel for the opposite party Nos. 1 and 2 had reiterated the stand in the written statement that they were willing to deliver the engine part thereof to the complainant or to pay the paltry price therefor. It would be manifest from the aforesaid finding that the vehicle in question suffered from inherent manufacturing defects as specified in the complaint and was re-delivered within the warranty period. However, for well nigh three months, the vehicle could not be made road-worthy. The case thus, clearly comes within the scope of Sub-section (1) of Section 14 of the Act.

In view of the above, the crucial question of relief is whether opposite party Nos. 1 & 3 were obliged to only repair the vehicle or to replace the same or refund its price. To this question the answer has now been rendered authoritatively by the National Commission in ''Abhaya Kumar Panda v. Mis. Bajaj Auto Limited, I (1992) CPJ 88 (NC). It is consequently unnecessary to examine the question afresh. In the said case the Orissa State Commission in the context of a vehicle supplied by M/s. Bajaj Auto Limited which had basic manufacturing defects, the Commission merely granted the relief of having all the defects removed and repaired and the vehicle be delivered back within two months of its receipt. However, on appeal, the National Commission holding that in such a situation, the proper relief was of total replacement, modified the same with the following observations:- "In considering the reliefs to be granted to the appellant under Sec. 14 of the Act, this Commission is firmly of the opinion that mere removal of defect by way of replacement of chassis and carrying out the other repairs was not enough. As observed earlier, the manufacturer should not have sold initially a product which suffered from a major manufacturing structural defect. This should have been rejected or condemned at the stage of quality control examination and testing and if it escaped detection at these stages, the particular product should have been withdrawn from the market or from the consumer voluntarily. Once the manufacturers became aware that a wrong or defective chassis had been fitted to the vehicle. The appellant/complainant had paid for a new and a defect free vehicle and if it had any major manufacturing defect, it should have been forthwith replaced. It is not necessary for this Commission to go into other matters of details regarding repairs carries out, the allegations of improper use by the appellant etc. We therefore, order as under: (i) The findings of the State Commission that the appellant-complainant is a consumer and that the vehicle supplied was defective are confirmed. (ii) The respondent No. 1, the manufacturer should within six weeks from this date replace the vehicle by a new auto trailer of the identical specifications after verification by testing and inspection that it is free from defects. (iii) The new vehicle will have to be covered by usual warranty from the date of delivery."

IN view of the aforesaid binding precedent, it would be plain that the complainant herein is entitled to the total replacement of the vehicle and we would have ordinarily granted this relief but in the present case, more than two years have elapsed from the original delivery of the car to the complainant. IN this period, prices of the vehicle have escalated and it may be somewhat onerous for opposite parties No. 1 and 2 to replace it with a brand new vehicle on its original price. The complainant himself in para 11 in the relief clause has primarily sought the cost of the car and only in the alternative has mentioned about its replacement. IN this situation, we are of the view that Clause (c) of Section 14 of the Act is more appropriate one for relief which envisages the return to the complainant of the price of the defective goods supplied. We would, there- fore, hold that opposite parties No. 1 and 2 are jointly and severally liable to the complainant, therefor and it is directed that they will refund the price of Rs. 1,28,000/- to the complainant, since the damaged body and the intact engine are admittedly already in possession of opposite party No. 1. As regards the complainant''s claim to compensation and damages, we find that he has been somewhat remiss in leading no concrete evidence in support thereof. Obviously the averments in the affidavit of the complainant on this point are of self-serving nature and cannot be accepted on their face value. No other evidence has been led at all on behalf of the complainant on this score. In this context, the complainant has none else but himself to blame for allowing his case of additional compensation to fail due to virtual non-prosecution. In the absence of any evidence worth the name, we are unable to grant the same.

TO conclude, this complaint is hereby allowed in the same terms as Surinder Singh of Chandigarh v. Mis Wheel World, Ambala Cantt. (supra). Opposite party Nos. 1 and 2 arc hereby jointly and severally directed to pay a sum of Rs. 1,28,000/- only to the complainant by way of the price of the defective car within one month from today failing which compliance will be enforced under Section 27 of the Act. Before we part with this order, it deserves recording that whilst the consumer-complainant has been accorded the relief aforesaid which he deserves, inevitably inter-se legal rights liabilities would arise betwixt the three opposite parties. Since admittedly the vehicle was comprehensively insured with opposite party No. 3, the opposite party Nos. 1 and 2 on the payment of its price to the complainant would have rights against the Insurance Company on the principle of subrogation. It is also the case that the premises of opposite party No. 1 were insured against fire by opposite party No. 3 and rights and liabilities would arise thereunder. These and other ticklish legal issues including the rights and liabilities of a bailee which may arise inter-se betwixt opposite party Nos. 1 to 3 are obviously beyond the scope of the consumer jurisdiction and would inevitably have to be resolved by the Civil Courts alone. Complaint allowed. _______________