RAVINDER SINGH JAMWAL vs Prem Nath Motors Pvt. Ltd.

THE complainant has claimed an amount of Rs. 1,10,000/- as compensation on account of physical and mental harassment caused to him due to the supply of a defective Car by the respondent. THE complainant also prays that the Car be replaced by a new Car.

BRIEFLY, the allegations are that the complainant booked a Car ''NE-118 Premier'' with the Premier Automobile Ltd. Bombay, who was respondent No. 1 in the original petition. The name of respondent No. 1 was deleted on September 21, 1990 and no relief is claimed by the petitioner against this respondent.

In this judgment, however, respondent No. 1 will mean the "Premier Automobiles Bombay" and respondent No. 2 will mean "M/s. Prem Nath Motors, New Delhi".

THE respondent No. 1 sent an intimation regarding booking of a Car on 13.1.1987 and supplied the various particulars i.e. intimation No. and priority Nos. etc. By Annexure-A dated 31.1.1987, the complainant was informed that his turn for delivery of Car was likely to mature by 2nd week of March, 1987 and he should send the choice of colour and Priority-cum-Intimation Card to the dealers within 2 weaks. The petitioner alleges that after complying with the directions contained in Annexure-A he sent the same to respondent No. 2. The respondent No. 2. however, vide letter dated 16.2.87 (Annexure-B) informed the complainant that they had not received the Priority-cum- Intimation Card although they had received the colour choice. The complainant vide Annexure-C, dated 23.2.87 informed respondent No. 2 that the Priority-cum-Intimation card was also sent alongwith the colour choice in a single envelope under registered cover. The complainant vide Annexure-E dated 8.6.87 requested respondent No. 1 to send a duplicate Priority-cum-Intimation card to him but respondent No. 1 Informed the complainant vide Annexure-F, dated 22.6.87 that they had received the original Priority-cum-Intimation card and directed the complainant to comply with other formalities.

IT is alleged that vide Annexure-G. the respondent No. 2 again asked the complainant on 24.7.87 to send the Priority -cum-Intimation card. The complainant also sent a letter (Annexure-H) dated 1.8.87 and a registered notice (Annexure-J) to the respondent No. 2 alongwith a legal notice, dated 4.8.87 (Annexure-K) for making delivery of the Car. The respondent No. 2. again vide letter dated 8.8.87 (Annexure-L) informed the complainant that the Priority-cum-Intimation card has not been received. Another legal notice (Annexure-M) dated 19.9.87 was served upon respondent No. 1, but with no effect. The complainant alleges that on December 18, 1987. he want to respondent No. 2 with a demand draft for Rs. 1,41,689.95 i.e. the increased price of the Car and get delivery of the Car bearing Engine No. 883964 Chasis No. 884645, which is now registered as HPK- 9393. After receiving the delivery of the Car he brought the same to Palampur from New Delhi. During journey he noticed certain defects in the Car. He however, took an impression that the defects would be removed within the warranty period and with 3 free services. He got three free services done at Chandigarh. Jallandhar and Delhi respectively, but the defects were not removed and as such a written complaint dated 13.10.88 (Annexure-0) was made mentioning that the Car was consuming excess mobile oil and was giving noise near the engine. The respondent No. 2 vide letter dated 18.10.88 (Annexure-P) asked the complainant to send the Car on any working day for removal of defects, but the complainant vide letter dated 26.10.88 (Annexure-Q) expressed his inability to do so because the distance was long. By a letter dated 1.11.88 (Annexure-R), the complainant was asked to bring the Car for proper checking and by another letter dated 31.12.88 (Annexure-S) the respondent No. 1 asked the complainant to take the Car to M/s Delhi Automobiles G. T. Road Jallandhar and to approach the Senior Branch Manager, Sh. T. R. Obaroi and service Engineer Mr. G. S. Ahluwalia, The complainant, accordingly took the Car to respondent No. 2 and get it checked through Engineer Mr. A. D. Ingrole and Y. N. Sanghi. The complainant again informed Sh. G. S. Ahluwalia vide his letter (Annexure-T) dated 1.3.89 about the defects and the complainant was asked to take the Car to Chandigarh vide letter (Annexure-U) dated 6-3-89. The complainant visited Chandigarh on 15.3.89 but the concerned Engineer Mr. Bal was not available. The complainant vide letter (Annexure-V) dated 8.4.89 informed the respondent that the Car could not be checked. The complainant also wrote to Sh. G. S. Ahluwalia representative of respondent No. 1 to send a copy of defects pointed out by him, butno reply was received.

THE complainant now alleges that the Car has completed 18,000 K. Ms only and is within the warranty period. He could not use the Car for long journeys due to various defects found in the Car.

HE further alleges that respondent No. 2 delayed the delivery of the Car on frivolous grounds which caused physical and mental harassment to him. On these grounds, the complainant has claimed compensation for physical and mental harassment due to the delivery of a defective Car and has also prayed for replacement of the Car. He also claims Rs. 10,000/- alleging that the price of the Car increased after March, 1987 and delay in the delivery of the Car by the respondent No. 2 was intentional. The claim of the complainant is contested by the respondents.

The respondent No. 1 denied the allegations of the complaint and alleged that the complainant is not a consumer as he is using the Car for Commercial business and there was no negligence on the part of respondent No. 1. The claim for refund of Rs. 10,000/- is belated and un-justified. It is alleged that no excess price was paid by the complainant at the time of delivery of the Car and the delivery was delayed due to the acts and conduct of the complainant. The claim for replacement of the Car is not maintainable under the Consumer Protection Act (hereinafter the Act) against respondent No. 1 as the provisions of MRTP Act apply to respondent No. 1. There is no privity of contract between the complainant and respondent No. 1. The relationship between respondent No. 1 and 2 is on principal to principal basis. It is alleged that no complaint regarding the defects was made at any earlier stage or at the time of the rendering of free services. The complaint made on 13th of October, 1988 was an after thought. The complainant was using the Car on hilly roads extensively and in a rough manner. The Car was attended to by the respondent No. 2 in the presence of Mr. Ingrole and even the engine oil was found to be O.K. The complainant was advised to keep the Car under observation for at least 1500 to 2000 k.ms. from the topping of the oil in the engine. The complainant did not go to Chandigarh for check up of the Car in spite of the instructions of the respondent. The Asstt. Service Manager of respondent visited Palampur to inspect the Car on 28.3.1990 and found that the Car meter reading was 18324 K.M. The complainant was advised that the car could be checked for excessive oil consumption after it had completed about 2000 K.M. but it had only done 7666 K. M. The complainant was sent a telegram to bring the Car to Chandigarh (Vide Annexure-G), but there was no response. On these grounds, the respondent alleges that the complainant is not entitled to any relief.

THE respondent No. 2 in a separate reply alleges that this Commission has no jurisdiction to entertain or adjudicate this complaint. It is further alleged that there is no negligence on the part of respondent No. 2 and the claim against respondent No. 2 is liable to be rejected. The various allegations made in the complaint are denied and it is stated that the Car was delivered immediately after the submission of complete papers.

IT is further alleged that no complaint was made about the excessive consumption of the mobile oil or other defects even at the time of the 3rd service. The respondent No. 2 co-operated with the complainant, but the complainant was reluctant to bring the car to Delhi. In spite of the expiry of the warranty period, the respondent No. 2 offered to attend the Car. Rejoinder was filed by the complainant and the various allegations of the complaint were reasserted in the rejoinder. Sur rejoinders were filed by respondents and the rejoinder. Sur rejoinders were filed by respondents and these too, the various allegations made in the reply by the respondents have been reasserted. The parties were given time to produce evidence by way of affidavits and documents.

WE have heard the learned Counsel for the parties. As the name of respondent No. 1 has been deleted from the array of the respondents and no relief is claimed by the complainant against respondent No. 1 (The Premier Automobile Ltd. Bombay), therefore, no adjudication is required on the allegations made by the respondent No. 1.

THIS judgment is confined to disputes between the complainant and respondent No. 2 only. The learned Counsel for the complainant contends that the complainant is a consumer under Section 2(d) (i) of the Act because he purchased a Car for a valuable consideration on payment of full price to the respondent No. 2 as is admitted by respondent No. 2. The Car supplied to the complainant is a defective one and the same is not up to the standard and quality which is required to be maintained. The respondent was bound to supply one New Premier NE-118 Car to the complainant without any defects and that the complainant was also given a guarantee card assuring him that the Car was a new one without any defects. It is clearly a "consumer dispute" between the parties because in spite of several oral and written complaints, the respondents did not care to give any relief to the complainant and the Car remains in defective condition.

It is also contended that the respondent No. 2 charged on excess amount of about Rs. 10,000/- from the complainant by making delayed supply of the Car in spite of the fact that the complainant had completed all the formalities. The complainant as such is entitled to the refund of Rs. 10,000/-. The delay in delivery of the Car was not on account of any fault of the complainant and the complainant was always ready and willing to take the delivery of the Car on earlier dates. The further contention is that the Car has become unserviceable due to the defects which have repeatedly been pointed out to the respondent, but the respondent did not care to remove the defects in spite of the repeated requests of the complainant. The complainant has suffered heavily and could not use the Car properly.

IT is contended that the Car should be replaced by a new Car and that the excessive amount of about Rs. 10,000/- with upto date interest be refunded to complainant. The learned Counsel for the respondent contends that the Car was supplied in good condition and there was no defect/deficiency in this Car. The respondents were always ready and willing to remove any defects which were found in the Car, but due to non cooperation of the complainant, the defects could not be removed. The complainant had repeatedly been asked by the respondent to get the Car checked through authorized agents of the respondent at their service stations for the defects. It is also contended that although the complainant got 3 free services done from the respondents yet during these services the complainant never brought any defect to the notice of the respondents. Regarding the refund of Rs. 10,000/- it is contended that this claim of the complainant is wholly untenable because the price charged was the prevelant market rate of the Car at the time of delivery of Car. The delay in making the delivery of the Car was not due to any negligence or in action on the part of the respondents, but was due to the fact that the complainant has not sent the Priority-cum- Intimation card to the respondent No. 2 and had directly sent the same to respondent No. l. The delivery of Car was made as soon as respondent No. 2 came to know that Priority-cum- Intimation card had been received. It is thus, contended that the complaint is unjustified and should be rejected. The learned Counsel further contends that this Commission has no jurisdiction to decide this dispute as the Car was delivered at Delhi and the services of the Car were also done outside Himachal Pradesh. It is also contended that in the job cards (shown to us during arguments) the Car was delivered to the complainant after free services and complainant was fully satisfied with the Car and the free service.

WE have considered contentions of the learned Counsel for the parties. The admitted facts are that the complainant booked one Premier NE -118 Car with respondent No. l in June, 1987 and intimation regarding this booking was sent to the complainant by respondent No. l. The complainant was informed that his turn for delivery of the Car was likely to mature in 2nd week of March, 1987 and that he should intimate the choice of colour and Priority-cum-Intimation card to respondent No. 2.

ACCORDING to the complainant, he sent the colour choice and Priority-cum- Intimation card to respondent No. 2 in a single envelope, but the respondent No. 2 alleges that only colour choice was received and Intimation card was not received. After correspondence with respondent No. l, it was ultimately found that Priority-cum-Intimation card had been received by the respondent No. 1 and the respondent No. 1 gave an information about this fact to the complainant in June 1987. In spite of the fact that a letter dated 22.6.87 (Annexure-F) had been received by the complainant about the receipt of the original Priority-cum- Intimation card by the respondent No. 1. The respondent No. 2 again asked the complainant to send the Priority-cum-Intimation card vide their letter dated 24.7.87 (Annexure-G). The complainant finding that the respondent No. l was delaying the delivery of the car sent a registered legal notice to the respondent No. 2, in August, 1987, but in spite of this notice, the respondent No. 2 failed to make delivery of the Car.

IN the mean time the prices of the Cars were increased and the complainant went to respondent No. 2 with a demand draft of Rs. 1,41,689.95 in December 1987 and got delivery of the Car bearing Engine No. 883964 Chassis No. 884645 (Registered as HPK- 9393) without supplying the Priority-cum-INtimation card. The various facts stated above and mentioned in the complaint clearly prove that the respondent No. 2 made intentional delay in the delivery of the Car and finally the present disputed Car was delivered to the complainant without presentation of Priority-cum- Intimation card for which the respondent No. 2 was insisting again and again. As the Intimation regarding receipt of Priority-cum-Intimation card by respondent No. l had been received in June 1987 as is evident from Annexure-F, therefore, there was no question of delaying the delivery of the Car till December 1987 specially when the complainant was always ready and willing to take the delivery of the Car and had even given legal notices for the same.

We are informed that increase in the prices of the Cars were effected in the month of October 1987.

DURING the course of the arguments by our order dated 11.12.90 we called upon the parties to file affidavits in the nature of supplementary evidence to enable this Commission to find the price of Car in March 1987 (when the delivery of the Car was likely to be made) and in December 1987 (when the actual delivery of the Car was taken). The complainant has filed an affidavit dated 29.12.1988, which is supported by a letter dated 19.12.1988 issued by respondent No. 2. According to the letter and the affidavit the sale price of the Car in 2nd week of March, 1987 was Rs. 1,28,468.77 inclusive of Delhi Sales tax. The affidavit dated 2nd June, 1990 of Sh. V. M. Saluj''a Asstt. Sales Manager of respondent No. 2 states that an amount of Rs. 1,45,991.95 was charged from the complainant on 18-12-1987 and the cost of the Car including Delhi Sales Tax was Rs. 1,41,689.95 which- fact is also proved from the bill.

THE aforesaid facts clearly prove that an excess amount of Rs. 13,141/- was paid by the complainant due to increase in the price of Car. The complainant has claimed an amount of Rs. 10,000/- only on account of the difference in the price. The aforesaid facts clearly prove that the respondent No. 2 made intentional delay and wanted to get the enhanced price from the complainant. This action on the part of respondent No. 2 was highly improper and unfair specially when the delivery of the Car was likely to be made in the month of March, 1987. There is no evidence to prove that the complainant was not willing to perform his part of the contract.

IN view of all these facts, we find that the amount of Rs. 10,000/- claimed by the complainant should be refunded to him because the complainant could never think regarding increase in the price of the Car in March 1987 or even upto June 1987.

FROM the affidavits and the various correspondence between the parties it is evident that the Car supplied to the complainant had some defects. The respondents were willing to remove these defects and were asking the complainant to take Car to New Delhi/ Jallandhar/Chandigarh etc. The complainant is resident of Palampur Distt. Kangra which is at a distance of more than 500 K.M. from New Delhi and taking the Car repeatedly to these places for check up again and again will naturally put the complainant to unnecessary expenditure. He had taken the Car for checking, but according to him the defects were still persisting. It is true that the complainant got three services of the Car done from the respondents but according to the complainant the defects could not be removed during these services although the complainant was assured that the same would be removed by the respondents.

Complainant filed this complaint within the warranty period and there is no reason to deny a just and proper relief to the complainant specially when he had paid the price of a new Car which in due course should be without any defect or deficiency.

THE respondent, thus is bound to remove the defects and deficiencies in the Car purchased by the complainant because the complainant has been supplied a vehicle which can not be said to be perfect and which has certain defects and deficiencies. The respondent''s Counsel contended that this Commission has no jurisdiction to try this complaint for want of territorial jurisdiction but we can not accept this contention of respondent''s Counsel. The complainant is a resident of Palampur and he purchased this Car for personal use. The Car was mainly to be plied within the limits of Himachal Pradesh.

THE money for purchase of Car was sent to the respondents by obtaining Bank drafts from Palampur (H.P.). THE interest was also refunded to the complainant by the respondents on his Palampur address. THE Car was registered with the Motors Licensing authority Palampur. Thus, according to the various proved facts, part of cause of action has arisen with in the limits of Palampur (H.P.) and this Commission has jurisdiction to try this dispute. In view of the aforesaid discussion we pass the following order : (a) An amount of Rs. 10,000/- be paid to the complainant within a period of 45 days from today. In case of non-payment of this amount within the stipulated period, the respondent M/s Prem Nath Motors shall pay interest @ 18% per annum on the amount till the date of realisation of the amount by the complainant. (b) THE respondent M/s. Prem Nath Motors should repair Car No. HPK-9393 and carry out all the repairs which are necessary for the smooth running of this Car so that all the defects and deficiencies in the Car are removed to the satisfaction of the complainant. (c) THE respondent M/s. Prem Nath Motors is directed to effect all these repairs within a period of two months from today and the respondent M/s Prem Nath Motors will be at liberty to take the Car to its Workshop at its own cost and return the same to the complainant at Palampur after effecting necessary repairs. (d) THE respondent M/s. Prem Nath Motors is further directed to give a fresh guarantee for a period of one year or for 20,000 K. Ms. running whichever event occurs earlier and this period of one year or calculation of mileage shall be counted from the day the Car is handed over/delivered to the complainant after carrying out necessary repairs.

Ordered accordingly.