M/S. MARIKKAR MOTORS LTD. vs ROY THOMAS & ANR.

The respondent/complainant Mr. Sri Roy Thomas purchased a vehicle from the petitioner for the purpose of earning his livelihood by using it for the carriage of goods. The said vehicle had been manufactured by respondent No.2 - M/s Jaya Automobiles Pvt. Ltd. The vehicle broke down while moving on a road and got stuck there. When informed, the petitioner asked the complainant to contact the manufacturer. When the complainant contacted the manufacturer, he was asked to bring it to their factory at Coimbatore. The complainant found it impossible to take the vehicle to Coimbatore and took it to a workshop where its axle was welded. After a few days, the axle again broke down and was replaced. The problem, however, persisted despite repeated repairs and replacements. Alleging a manufacturing defect in the vehicle, the complainant approached the concerned District Forum with a complaint, impleading the petitioner as well as the manufacturer as the opposite parties.

The manufacturer did not contest the complaint. The petitioner resisted the complaint on the ground that it was only an agent of the manufacturer and, therefore, could not be held liable for the defect in the vehicle.

The District Forum vide its order dated 26.7.2001 held that the vehicle had a manufacturing defect in it and, therefore, directed both the OPs in the complaint to return the purchase price to the complainant along with compensation quantified at Rs.10,000/-.

Being aggrieved from the order passed by the District Forum, the petitioner preferred an appeal before the concerned State Commission. Vide an order dated 6.12.2001, the State Commission dismissed the said appeal. Being still dissatisfied, the petitioner is before this Commission by way of this revision petition.

A concurrent finding of fact has been returned by the Fora below that the vehicle sold by the petitioner to the complainant suffered from a manufacturing defect. The said finding of fact cannot be interfered with by this Commission in exercise of its revisional jurisdiction unless it is shown to be perverse. On a perusal of the orders passed by the Fora below, I find that the finding returned by the Fora below is based upon the report of the Commissioner, Exhibit P3 and the said Commissioner was of the opinion that most of the major defects in the vehicle were not subject to repairs. He found manufacturing defects in the front chasis and fork, rear axle tubes, as well as in the design of the vehicle. He was also of the opinion that repairing or replacement of parts will not be economically feasible considering the poor condition of the vehicle which was not roadworthy. The State Commission noted the case of the complainant that the vehicle had been assembled using second hand spare parts and the manufacturer of the vehicle which was the best person suited to deny the said allegation had not even come forward to contest the complaint. Therefore, I find no justification for interfering with the said finding of fact in exercise of the revision jurisdiction of this Commission.

It was contended by the learned counsel for the petitioner that the petitioner being only an agent of the manufacturer, cannot be held liable for the manufacturing defects, if any, in the vehicle and, therefore, the District Forum was not justified in directing the petitioner as well to refund the sale consideration along with compensation. In this regard, he pointed out that in para 1 of the complaint, the complainant himself had alleged that the vehicle was purchased by him through Marikar (Motors) Ltd., which was the agent or distributor of the manufacturer M/s Jaya Automobiles Pvt. Ltd.

When this revision petition came up for hearing on 19.11.2004, it was adjourned pending disposal of a Special Leave Petition pending at that time before the Hon''ble Supreme Court. The said SLP was directed against an order of this Commission dated 24.3.2003 in Revision Petition No.1298 of 2001 - Marikar (Motors) Ltd. Vs. Lalan Carmu and Anr. In the above-referred revision petition filed by this very petitioner, the District Forum as well as the State Commission had directed the petitioner, a dealer of the motor vehicle, to refund the price of the vehicle which was found to be suffering from a manufacturing defect. It was contended by the petitioner before this Commission that the direction for replacement of the vehicle should have been issued only to the manufacturer and not to the dealer, it being only an agent of the manufacturer. The contention was rejected noticing that there was nothing on record to show that the dealer was the agent of the manufacturer. It was further noted that the dealer was an independent person who had sold the defective vehicle and received payment from the complainant. Having sold the defective vehicle and having charged the price thereof, the petitioner could not shift the blame only on the manufacturer. It was also held that it is between the petitioner and the manufacturer if the petitioner has any grievance, but as far as the complainant is concerned, it cannot be absolved of the responsibility of having either to replace the defective vehicle or to refund the price. It was, however, made clear that in case of replacement or refund of the price of the vehicle, the defective vehicle will be returned by the complainant to the dealer. Civil Appeal No.444 of 2004 titled as Marikar (Motors) Ltd. Vs. Lalan Carmu and Anr., was filed by the petitioner before the Hon''ble Supreme Court against the above-referred order of this Commission dated 24.3.2003. The said appeal was dismissed by the Hon''ble Supreme Court vide order dated 6.5.2009 thereby affirming the order of this Commission.

Considering the view taken by this Commission in R.P. No.1298 of 2001 filed by this very company, which was later upheld by the Hon''ble Supreme Court, it will not be possible for the petitioner Company to deny its liability on the ground that it was only a dealer and not the manufacturer of the vehicle. It was the petitioner which received the sale consideration from the complainant and sold a defective vehicle to him. If the vehicle was defective, it ought not to have been sold. As far as the complainant is concerned, his claim is maintainable and justified against the manufacturer as well as the dealer who received the sale consideration. In case the petitioner has a claim against the manufacturer by virtue of its agreement with the manufacturer, it can have its remedy against the manufacturer after making payment to the complainant in terms of the orders passed by the Fora below. But it cannot be absolved of its responsibility to either replace the defective vehicle or refund the price which it had received from the complainant along with appropriate compensation.

The learned counsel for the petitioner has referred to the decision of the Hon''ble Supreme Court in Hindustan Motors Ltd. & Anr. Vs. N. Siva Kumar & Anr.[(2000) 10 SCC 654] , in support of his contention that it is only the manufacturer who is liable to the purchaser in case a manufacturing defect is found in the vehicle. In N. Siva Kumar (Supra), the Hon''ble Supreme Court had upheld the order of the State Commission for refund of the sale consideration along with interest and compensation, on the finding that the appellants had sold a defective car to the complainant. The Hon''ble Supreme Court, however, maintained the observations of this Commission to the effect that for the manufacturing defect in the vehicle, the dealer could not be held liable and the liability must be borne by the manufacturer. On the other hand, in Jose Philip Mampillil Vs. Premier Automobiles Ltd. & Anr. [Civil Appeal No.3611 of 2002] decided on 27.1.2004, the Hon''ble Supreme Court upheld the liability of the dealer in a case of sale of a defective car. While directing the repair of the car from a reputed garage or a mechanic, the Hon''ble Supreme Court directed that the liability to pay the repair cost will be joint and several of both the respondents, i.e., the manufacturer and the dealer of the car. It was held that the dealer was being held jointly liable as it was his duty to have refused to deliver a defective car and in any case to have properly repaired the car during the warranty period. It was further directed that in case the repair charges were not paid forthwith, the complainant could seek execution by making the dealer to pay initially and it will then for the dealer to claim reimbursement from the manufacturer, if in law they are entitled to do so. In C.N. Anantharam Vs. M/s Fiat India Ltd. & Ors. Etc. Etc. [Special Leave Petition Nos. 21178-21180 of 2009] decided on 24.11.2010, the petitioner before the Hon''ble Supreme Court purchased a Fiat car manufactured by respondent No.1 Fiat India Ltd. from M/s Sundaram Automobiles, Bangalore. Alleging inherent manufacturing defects in the complaint, the petitioner approached the concerned District Forum by way of a complaint. The said forum directed both the respondents to refund the sale price along with interest and compensation. The State Commission

in an appeal, directed replacement of the vehicle or refund of the sale consideration in case the vehicle was not replaced by a brand new vehicle. This Commission, however, held that the complainant had not been able to prove any manufacturing defect in the vehicle but directed the dealer and the manufacturer to remove the defects, if any, in the vehicle so as to make it roadworthy, if necessary by reconditioning the vehicle. Being aggrieved from the said order, the complainant approached the Hon''ble Supreme Court by way of a Special Leave Petition and one of the issues before the Hon''ble Supreme Court was as to whether both the dealer and the manufacturers are jointly and severally liable in regard to the deficiency of service. The petitioner before the Hon''ble Supreme Court placed reliance upon Indochem Electronics & Anr. Vs. Addl. Collector of Customs, A.P. [Civil Appeal No.1273 of 2006] decided on 24.2.2006, whereas the respondents relied upon the Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr.[Civil Appeal No.3734 of 2000] decided on 29.3.2006 and Hindustan Motors Ltd. & Anr. Vs. N. Siva Kumar & Anr.(Supra) . Having considered the respective submissions of the parties, the Hon''ble Supreme Court upheld the order passed by this Commission but also directed that if an independent technical expert was of the opinion that there were inherent manufacturing defects in the vehicle, the petitioner would be entitled to refund of the price along with interest etc. Thus the direction given by this Commission to both the dealer as well as the manufacturer to remove the defects if any, in the vehicle and make it roadworthy was upheld by the Hon''ble Supreme Court.

Having considered the above-referred decisions of the Hon''ble Supreme Court, I am of the considered view that in view of the decision of the Apex Court in Revision Petition No.1298 of 2001 filed by none other than the petitioner Company and involving this very issue, the liability of the petitioner Company cannot be disputed and if any remedy under the agreement between the petitioner and the manufacturer is available to it, the same can be availed by the petitioner in case it is made to pay to the complainant in terms of the orders passed by the Fora below.

For the reasons stated hereinabove, the revision petition is hereby dismissed. It is however, directed that while making payment to the complainant in terms of the orders passed by the Fora below, the petitioner Company shall be entitled to receive the delivery of the vehicle from the complainant. The revision petition stands disposed of.