P.SOUNDARA PANDIAN vs SIPANI AUTOMOBILES LTD.

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE first opposite party is the manufacturer of Montana Diesel cars and the second opposite party is their dealer at Madurai. THE complainant purchased a Montana Diesel Car from the second opposite party on the basis of an advertisement made by the first opposite party that the car would be fitted with a 900 cc Triple cylinder Diesel engine built with Japanese technology. THE car was exhibited and run for trial fitted with a reputed Mitsubishi engine. THE complainant paid an advance of Rs. 10,000/- and subsequently the balance and the cost came to Rs. 1,25,025/-. THE car was delivered on 24.9.90. THE quality, standard and performance of the car were poor. THE car was fitted with an engine of local substitute from Coimbatore which has nothing to do with the Japanese technology. THE engine failed on many occasions even within 3 months and the car had to be repeatedly taken to the second opposite party for repairs. Finally the car was returned to the second opposite party on 16.6.91 and the second opposite party seemed to have sent it to the first opposite party with whom it is lying since then. THE complainant has therefore come forward with this complaint for refund of the amount and damages. The first opposite party in its counter attributed the defects not to any manufacturing failure, but to the quality of diesel, improper maintenance, improper way of changing gears etc. It is averred that there was no intention to bing the first opposite party in contract that the engine would be fitted with Mitsubishi. The first opposite party denied that it neither mislead nor misrepresented the consumer. There was no manufacturing defect or deficiency of service or negligence.

The second opposite party contended that the entire payment has been made to the first opposite party directly and the second opposite party is not liable for misrepresentation or deficiency or negligence.

EXHIBITS Al to 26 are marked by consent. No oral evidence has been let in on either side. Affidavit of the complainant is filed. The complainant has purchased a Montana Diesel car manufactured by the first opposite party and the car has been taken delivery of on 24.4.90. According to the complainant he purchased this Diesel car on the representation made by the first opposite party in its advertisement that it would be fitted with 900 cc triple cylinder diesel engine built with Japanese technology. According to the complainant the car which was exhibited in the showroom was fitted with Mitsubishi diesel engine, but the car purchased by the complainant is fitted with a diesel engine manufactured at Coimbatore and this amounts to unfair trade practice within the meaning of Section 36(a) of the Monopolies and Restricted Trade Practices Act. Exhibit 24 is the advertisement made by the first opposite party and it clearly stated as follows : "Under the bonnet is the prime mover behind this unimaginable feat. This new generation, 900 cc triple - cylinder diesel engine built with Japanese technology is compact and silent, remarkably this indirect injection engine allows the Montana to marry miserly fuel consumption with astounding performance".

Having made such a representation in the advertisement, the opposite parties have now sold a car with local engine. The manufacturers of which had absolutely nothing to do with the Japanese technology. This is therefore a clear case of unfair trade practice within the meaning of Section 36(a)(1)(i), (iv) and (v) of the MRTP Act.

THREE identical cases in respect of the Montana Diesal car manufactured by the first opposite party have come for consideration before the Stale Commission, Karnataka in Dr. B.N. Roshan Kumar v. M/s. Sipani Automobiles Ltd. II (1992) CPJ 708=1992 (1) CPR 325, Dr. Mohan Rao v. M/s. Sipani Automobiles Ltd. (1992 (1) CPR 357) and Dr. S.C. Bembalgi v. M/s. Sipani Automobiles Ltd. (1992 (1) CPR 497). The State Commission has held that the manufacture was guilty of unfair trade practice. The same is the case before us. We have therefore no hesitation in holding that the first opposite party has committed grave unfair trade practice in advertising the sale of Montana diesel car with a diesel engine of Japanese collaboration, but actually selling it with a diesel engine of local manufacturer. The car which has been taken delivery of by the complainant on 24.9.90 has broken down several times and the complaint read with the affidavit filed by the complainant makes a dismal reading of the performance of this vehicle. The car had to be left for repairs in the workshop of the second opposite party 40 days during the first 3 months. Thereafter the head gasket has got jammed and the vehicle had to go to repeatedly to workshop of the second opposite party for repairs and from 16.6.91 the car is with the first opposite party. The complainant has incurred an expenditure of Rs. 2,722.50 for repairing this new car by the second opposite party under Exhibit A6, and A9 to A14. This is therefore a clear case where the first opposite party has sold a defective vehicle. The complainant is entitled to get back the cost of the car namely Rs. 1,25,025/-, the expenses incurred by him under Exhibits A6, A9 to A14 to the tune of Rs. 2,722.50, the insurance premium of Rs. 2,966 paid under Exhibit A 10 and the motor tax of Rs. 300/- under Exhibit A21, in all the total comes to Rs. 1,31,013.50. The complainant is also entitled to claim damages for mental pain and agony which we fix at Rs. 25,000/-.

THE second opposite party is only a dealer and all payments made directly to the first opposite party. It cannot be molted with any liability.

IN the result we order as follows : 1. The first opposite party shall pay to the complainant a sum of Rs. 1,31,013.50 with interest thereon at 18% from 16.6.91 from when the car is with the opposite parties. 2. The first opposite party shall also pay Rs. 25,000/- as compensation to the complainant. 3. The first opposite party shall also pay a sum of Rs. 3,000/- as costs to the complainant. 4. The complaint fails and stands dismissed as against the second opposite party, but without costs.

Complaint dismissed.