RAMESH CHANDRA J. MEHTA vs P.H. WADIA And SONS

THE complainant No. 1 is the purchaser of the car. No. 2 is a registered voluntary consumer association. No. 1 is residing at Navagam Ghed in Jamnagar District. THE opposite party No. 1 is the authorized dealer of the product manufactured by opposite party No. 2 viz. Premier Automobiles Limited carrying its business of manufacturing various kinds of cars and its allied machinery parts. THE complainant No. 1 has booked one car known as Premier Padmini Deluxe BE (hereinafter referred to as the car) through the opposite party No. 1 the dealer. On or about 16.4.1991 the complainant No. 1 was informed by opposite party No. 1 on telephone that the car booked by the complainant was ready for delivery and has also asked to deposit the bank draft for the balance amount. THE complainant sent a draft for Rs. 145,661/- drawn on Rajkot Nagrik Sahkari Bank Limited with his letter wherein he informed that he will take the delivery on 20.4.91. But he alleged that the car was not checked properly by the opposite party No. 1 a nd have issued a certificate that the car is in O.K. condition.

THAT the opposite party No. 2 had also issued a certificate of road worthiness and compliance with pollution standards and safety standards of the component. The complainant has further stated that relying upon the certificate issued by the opponent he had no opportunity to doubt the genuineness of the certificate and believed that the car will be in O.K. condition. According to him the complainant was not allowed to check it. The complainant has further alleged that on using the car for trial on road with temporary registration number he came to know that the car was having so many defects. He, therefore, immediately drawn the attention of the opposite party No. 2 by telegram dated 29.4.91. The complainant appears to contacted a qualified surveyor Mr. Rajesh Thakkar for making a report on the condition of the car on 4.5.91. The surveyor had pointed out some defects vide his report. The report has been annexed with the complaint. We will discuss the report at the appropriate place. Alleging that the car was defective, he requested the opposite parties to replace the same by a new car and such replacement not being granted, he has filed this complaint and prayed that order be passed directing the opposite parties to replace the defective car together with 24% interest from the date of payment till the actual payment is made and Rs. 2500/- towards cost of the complaint. No other relief has been prayed for by the complainant except the replacement of the car.

The opposite parties have denied the claim and their liability. Since there is a complaint of manufacturing defect, we will first deal with the reply of the opposite party No. 2 viz. Permier Automobiles Limited. The first contention is that a complaint regarding unfair trade practice is not maintainable against opposite party No. 2 since opposite party No. 2 is an undertaking to which Chapter III-A of the MRTP Act, 1969 is applied. The opposite parties have stated that the complainant took the delivery of the car without any protest or demur. The car was in perfect condition. The opposite party No. 2 has further submitted that they were willing to look into the matter but due to the non co-operation of the complainant by not making his car available, they were unable to do the needful. They have further stated that without waiting for the communication from the opposite party, the complainant got his car examined by independent surveyor though the opposite party had written to the complainant asking him to send the car to the dealer for rectification of the defect. The dealers were also instructed to carry out the needful and to attend to the car of the complainant on top priority. They further stated that they are renowned car manufacturers in the country and the product is examined at various production levels before it is delivered to the dealers and the submission with regard to the defect is that the complainant was given a brand new car and no manufacturing defects or deficiency were present in the car at the time of the delivery. Again, their contention is that the car was never made available to the dealer inspite of several letters written by the dealer and the manufacturer to the complainant and the damages claimed was, therefor, untenable.

THE opposite party No. 1 has also filed its version. THE opposite party No. 1 has further stated that they have received the bank draft for Rs. 145,661/- but it was not true that the same was sent alongwith letter dated 16.4.91. THEy have not received any such letter and the complainant has made it clear that he will take the delivery on 20.4.91. THEy have denied that the delivery was not given because some work was still required to be completed. THE complainant has taken delivery on 24.4.91 and that the Opposite Party No. 1 had completely checked the car. THE complainant No. 1 had also checked the car and thereafter taken the delivery of the car. After checking the car, the complainant was satisfied about the condition of the car and has executed the customer service receipt cum owner satisfaction on the same day. THEreafter they have referred to the correspondence and denied the claim in toto. That at the request of the parties, permission was granted to cross-examine the complainant who has stepped into the witness box. To a specific question, the complainant has admitted that the Premier Automobiles Limited by its letter dated 1.6.91 had requested him to send the car to its dealer for repair but he had no intention to get the car repaired. He wanted replacement and, therefore, he did not send the car. He has stated that he had got the car surveyed after receipt of telegram dated 1.6.91 i.e. after the receipt of telegram from the company. He has also admitted that on 25.9.91 Mr. Desai had gone to check the car at his place but he has not admitted that Mr. Desai had found only two defects. He has admitted that Mr. Anil Bhatt had come and he knew that Mr. Bhatt was Automobile Service Engineer but he had not given him satisfactory answer. He has in turn stated that there was no question of repairing any defect. In his further deposition he has also admitted that he went to the dealers with his car on 15.5.91 and the dealers offered to repair his car but he refused to get it repaired because he asked for the receipt since he wanted replacement of the car. He did not want to get the car repaired and naturally, the dealer was not prepared for the replacement and, therefore, they were not prepared to accept the car for replacement and give the receipt. Mr. Sharma, the learned Counsel appearing on behalf of Permier Automobiles Limited, put a direct question to the witness to the effect that the complainant wanted the car to be replaced from the beginning and in answer to that question, the complainant has in terms stated as under (in Gujarati) "On account of the defects, he did not want the car. He has no intention to get it repaired. When he has paid Rs. 1,50,000/-for the car, why should he keep such a defective car which was not in his advantage." He has admitted that when got the survey carried out by the private surveyor, he had not given any information to the opposite parties. He has not admitted that the car was delivered before 4.30 p.m. He has not admitted that the car delivered before 11 a.m. and that the car was taken to the R.T.O. at 4 O'' Clock. He has reiterated that the car was delivered at 7.30 p.m. The complainant has also examined one Rajesh Shankarlal Thakkar who had surveyed the car and who had also stated that he had given a certificate. The witness in cross-examination has admitted that the defects which have been pointed out by him can be repaired and the car will be just like new car but once it is repaired, it cannot be said to be a new car. According to him certain defects were subject to adjustments and certain defects were required to be repaired. There were certain dents and doors were not properly fitted. To the question as to what was the defect in the differential unit, the witness has stated that there was read oxide paint on differential unit and body chassis but there was no colour at those places. If the company was not giving colour at these places, according to him it was a defect. He has further stated that other defects which he had pointed out were manufacturing defects.

THE opposite party has examined one Shri Manharlal Desai who was serving with the opposite party No. 1 M/s P.H. Wadia & Sons. According to him the purchaser had come to take the delivery of the car on 20.4.91. According to this witness, the complainant has selected one carat 11 a.m. and thereafter he selected the suit car. First they went to the R.T.O. and got the car registered but since the complainant changed the car the company permitted him and the suit car was selected which was registered at R.T.O. At both time, the cars were temporarily registered. THE complainant had not come even for first service at any time. He has stated that the complainant was prepared to leave the car only if the company was prepared to replace the same. He has further stated that he and Mr. Bhatt had gone to Jamnagar in connection with the car in August 91 and on examination of the car, they have found minor defects only. Had the car been sent for servicing, the same could have been satisfactorily repaired. He has specifically stated that he was present at the time when the car was delivered. THE witness has stated that the car was delivered to Mr. Rajesh Metha and Mr. Kundanbhai who had come with Mr. Metha had signed the delivery memo. He has further stated that the car had come from Bombay to Ahmedabad by road and had the temporary registration which was in the name of the dealer. We have minutely gone into the details of the pleading as well as the oral and documentary evidence. The complainant, while taking the delivery selected one car, got it temporarily registered with R.T.O. at 11 a.m. changed his mind, selected another car, got it temporarily registered with R.T.O., gone to Jamnagar by driving the car and thereafter on 29.4.91 makes a complaint by telegram. The complainant was not perpared to leave the car for repair because according to him the defects in the car were such which required replacement and, therefore, he had no intention to get the car repaired or leave the car for repair. He had no intention to give any chance to the opposite party for repair since according to his opinion and advice the defects were such that replacement was the only remedy. In filing the complaint also, he has merely asked for the replacement and has not asked for any damages. Now, therefore, we are required to decide the defects alleged by the complainant and if all the defects are found to be valid, will it give right to the complainant to demand the replacement of the car. We have considered the report made by the private surveyor of the complainant. We are not satisfied with his evidence. He has not explained any of the defects and he has also not expalined as to how the defect can be said to be manufacturing defect. We have considered the defects and we do not find that any of the defects cannot be satisfactorily repaired. If may not be forgotten that most of the cars are made locally by the best available workmen but then the manufacturing technique of this country might not have achieved the same perfection like the manufacturing technique of advanced countries. The Primier Padmini Car is known to the buyers. Buyer is himself driving the car and can find out the defects which can be seen visually. If there is a defect in the car, it can be seen visually. If the doors are loose, it can be seen when the door is opened or closed. Most of the defects which have been pointed out by the surveyor can be seen visually. When a person purchases a new car, we cannot believe that he has not examined the same. He has made choice and Mr. Ramesh Mehta could not deny that this was a second selection. If a man selects one car and rejects the same after temporarily registered and selects another car, then it cannot be believed that he has taken the delivery at 7.30 p.m. The office of the R.T.O. generally closes between 4 and 5 in the evening and, therefore, when he had gone to R.T.O. for the purpose of temporary registration of the car, he had the occasion to inspect the car minutely. We therefore do not believe that the complainant had not examined the car at the time of delivery. The only conclusion is that those defects might have been occurred after the delivery of the car. We do not find any of the defects as manufacturing defects which cannot be properly repaired. The surveyor of the complainant himself had to admit that all the defects can be repaired and the car will be like a new car. But once there is a minor defect and if it is repaired to the satisfaction, the car becomes second-hand car not new car. We cannot help the sensitiveness of a person. But you are purchasing a car made in this country, you know that we shall have to give some allowance of minor adjustments and defects compared to its price and its scarcity. We are of the opinion that these defects can be properly cured and these defects are not the defects which gives a right to a complainant for replacement.

THE complainant has selected the car after seeing the same. THE defects pointed out are not major defects or which cannot be cured satisfactorily by repair. He had no intention to get it repaired since he wanted replacement only. THE Hon''ble National Commission in the case of Mahindra & Mahindra Ltd. v. B.G. Tliakurdesai & Anr., reported in 1993 (1) CPR page 170 has observed as under : " It was argued on their behalf that though it is not admitted that there was manufacturing defect in the engine of the vehicle supplied to the complainant but as it had started giving trouble, therefore, as a special case and as a matter of goodwill the engine was replaced meaning thereby that the defect in the goods sold to the complainant has since been removed.""THE Counsel of the appellant argued that when the defect has been removed, the State Commission ought not to have ordered the refund of the price of the vehicle to the complainant as no other manufacturing defect exists in the vehicle."

" We are of the opinion that the above argument of the party has force. When the engine of the vehicle which had started giving trouble to the Complainant has since been replaced and no other defect is being pointed out in the vehicle we fail to understand why the Complainant is not prepared to take back the vehicle in question after it has been duly repaired. His apprehension that a defective vehicle has been supplied to him has no basis the defect no longer exists in the vehicle.

" If a consumer purchases some machinery and some part of it found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the Manufacturer if he is asked to replace the whole machinery without sufficient cause. Hence we are of the opinion in the interest of the manufacturer if he asked to replace the whole machinery without sufficient case. Hence we are of the opinion that in the present case the State Commission was not justified in ordering the opposite parties to refund the price of the vehicle to the consumer i.e. complainant when the complainant himself had refused to take delivery of the vehicle after it had been repaired."

In the case referred to above the engine was defective and therefore, replacement was demanded. Even then, the Hon''ble National Commission was not in favour of replacement. However in the instant case there is no defect proved by the complainant in the engine or vital part of the car. He is not prepared to get the car repaired. Even if there is a manufacturing defect which can be cured by changing the parts or by repair, according to the observation of the Hon''ble National Commission the replacement will prejudice the interest of the Manufacturer. That the complainant has failed to prove that there was such manufacturing defect which requires replacement. We are, therefore, of the opinion that the complainant is not entitled to the relief of replacement. However, he can take the advantage of the offer still pending for repair provided the car has not been subjected to further depreciation either by use or by any other way. THE complaint therefore deserves to be rejected since the complainant has not prayed for any other relief. ORDER THE complaint is dismissed. In the circumstances there will be no order as to costs. Complaint dismissed.