Sreekala vs STANDARD MOTOR PRODUCTS OF INDIA LTD

THE complainant purchased on 11. 2. 1993 a new standard space cab manufactured by the 1st opposite party through the second opposite party who was the dealer of the 1st opposite party at the material time. The complainant availed a loan from State Bank of Travancore, Vazhuthacaud Branch for purchasing the vehicle.

IT is alleged in the complaint that at the time of purchasing the vehicle the 2nd opposite party assured of smooth functioning of the vehicle for a long period even after the guarantee period and the complainant was also made to believe that the engine of the vehicle was a brand new defectless ''mico Engine''. The complainant claimed under various heads in the original complaint compensation of Rs. 1,65,407 in addition to the relief of providing a new car or for giving to her the value of the vehicle. In the amendment application the claim made by her under various heads is Rs. 2,99,023.

D opposite party in his version DenieD that any such assurance was given by him anD he was not even the Manager of the Thiruvananthapuram Branch of 4th opposite party at the material time.

WE shall at first deal with the case of the complainant regarding the defects of the vehicle purchased by her. It is the common case of the parties on 23. 3. 1993 the complainant brought the vehicle to the Thiruvananthapuram Branch Office of the 4th opposite party for rectifying the defects (she noticed a change in the engine noise ). It is admitted by the complainant in the complaint that some repairs were done at the instance of the 2nd opposite party. It is also to be pointed out here that it is clearly admitted in Ext. P7 sent by the complainant to the Branch Manager of 4th opposite party that on 23. 3. 1993 necessary repairs of the vehicle were arranged and the vehicle delivered to the complainant. It is also to be pointed out here that in Ext. P7 it is only asserted by the complainant that there was breakdown of the vehicle on 23. 3. 1994. It is also to be pointed out here that it is nowhere asserted in Ext. P7 that after some repairs were done at the instance of 4th opposite party a loud noise like that of heavy knocking on metal was being heard at the time of starting vehicle. We are not relying on that fact (non-mentioning of the fact of hearing of loud noise in Ext. P7) on the ground that it is the case of the 2nd opposite party that on 23. 3. 1993 the complainant came to M/s. Stanes Motors and complained that there was a metallic noise from the engine. We have to accept the case of the 2nd opposite party that the vehicle was checked and it was found that one of the connecting rods was broken and that was replaced free of cost. We accept that case for the following reasons. The allegation made in the complaint is that thereafter loud noise like heavy knocking on some metal part was being heard at the time of starting the vehicle, that on reporting the same the 2nd opposite party had entrusted the vehicle with a workshop to find out the defect, that on checking it was a traced out by the workshop men that there were material and patent defects such as deep scratches on the shaft, breaking of connecting rod, bearing rings, etc. in the engine and that the workshop people had done some repairs and delivered the vehicle to the complainant. Here also we have to point out that no such fact is asserted in Ext. P7.

IN the legal notice sent by the complainant to the 1st opposite party evidenced by Ext. P8 it is asserted that, "on 23. 3. 1993 while the vehicle was on a usual trip, we noticed some change in the engine noise. The fact was informed to M/s. Stanes Motors, your dealer at Thiruvananthapuram and as per their advice the vehicle has been taken to their office. They in turn checked the pumping system and done some adjustments, thereafter on starting the engine an entirely new voice that is some metal knocking like heavy noise was heard. Then the vehicle has been entrusted to a nearby workshop by the dealers for finding the fault. They in course of their checking found that the noise was due to the breaking of connecting rod, bearing rings (two pieces) and due to this fault the shaft also got some deep scratches. Accordingly they have repaired the vehicle and delivered it to us". Thus in the legal notice it is clearly admitted that the defects noticed by the workshop people were got rectified by the 4th opposite party. We have pointed out that fact also to show that the assertion made by P. W. 1 (he is the power of attorney holder of complainant who is his wife) in para 6 of the affidavit filed by him to the effect that dealer directed the proprietor-cum-mechanic Mr. M. Hariharan of Swami Motors to cure the defect completely in front of me, later on in my absence, the dealer clandestinely instructed Mr. Hariharan not to effect the work as agreed upon, but to make some temporary adjustments only is a brazen lie and he has scant regard for truth. That assertion made in the affidavit by P. W. 1 is to be rejected outright on the ground that no such case is either put forth in the complaint or in Exts. P7 to P9. We are not inclined to accept the evidence of P. W. 2 to the effect that the Manager of Thiruvananthapuram Branch Office of 4th opposite party directed him to cure defects noticed by him when the vehicle was brought to his workshop by the Manager and on the very next day morning Manager came along with Supervisor and told him not to do any major repairs but only to do hand polish. The obvious reason is that no such case is pleaded neither in the complaint nor in Exts. P7 to P9. It may also be noted that the evidence of P. W. 2 is that Manager of the 4th opposite party had not asked him to do repairs in the presence of P. W. 1. We need not place any reliance on Ext. P6 on the ground that it is evident from his (P. W. 2''s) testimony that it was as asked by P. W. 1 he produced Ext. P6 before this Commission. The fact asserted in Ext. P6 that in the presence of P. W. 1, the Manager of the 4th opposite party asked him to carry out the repairs to rectify the defects found by him and on the next day Manager came along with the salesman one Jayaram and told him only to do hand polishing and not to do any major work is not to be accepted and we have already found that case of complainant on that aspect attempted to be proved by filing affidavit and producing Ex. P6 is not true.

WE are also not inclined to accept the assertion of P. W. 1 in his affidavit to the effect that the 4th opposite party effected some repairs through a petty private workshop on the ground that no such case of effecting repairs through petty workshop is pleaded in the complaint or in Exts. P7 to P9. Thus it is clear from the averments made in the complaint and Exts. P7 to P9 that repairs were got done by the 4th opposite party through the P. W. 2''s workshop and the defects were completely rectified.

THE case of the complainant is that the vehicle developed trouble on 18. 4. 1993 i. e. , while running complainant noticed similar heavy noise and the matter was immediately informed to the 2nd opposite party. As it was a sunday, the 2nd opposite party inspected the vehicle on the next day and no noise was heard at that time of inspection by 2nd opposite party. The 2nd opposite party instructed the complainant to bring the vehicle whenever such noise is heard again. Second opposite party admitted the fact that complainant came on 19. 4. 1993 and complained that similar noise was heard from the engine. It is the common case of the parties that when the vehicle was tested it was found that there was no such noise. We accept the case of 2nd opposite party that complainant was also satisfied and convinced that there was no such noise and vehicle was taken back by the complainant. Now we have to examine the case of the complainant that on "24. 4. 1993, while the vehicle was on a trip from Peroorkada when it reached at a place called Kallada a loud noise was heard" and the vehicle automatically stopped. It is the case of the complainant that on 26. 4. 1993 the complainant informed the 2nd opposite party and surrendered the vehicle along with the key. The second opposite party''s case is that the complainant again complained that after running about 100 kms, such sounds heard and that the vehicle cannot be used. "they parked the vehicle in the premises of M/s. Stanes Motors (South Indian Ltd.), The Manager of Stanes Motors informed that matter to the 1st opposite party, and the service engineer rectified all mistakes as stated in the objection submitted by the 1st opposite party. The vehicle is now quite all right and ready for use. It is also the case of the 2nd opposite party that the complainant is deliberately refusing to take delivery of the same and complainant was informed of about these facts. They were requested to take back the vehicle and they are deliberately refusing to take delivery with ulterior motive.

A Commissioner was deputed to inspect the vehicle and Ext. P14 is the report of the Commissioner. We may point out here that it is not discernible from Ext. P14 that he inspected the vehicle after giving notice to parties. It is true that it is stated that at the time of inspection on 12. 7. 1994 the vehicle was seen parked in the premises of Stanes Motors, Thiruvananthapuram. It is reported by the Commissioner that the dealer has replaced the engine half (engine block and its components ). That fact is further proved by Ext. P12, the letter sent by the 1st opposite party to the complainant. It is stated therein "we have been advised by our dealer that the bearing had rotated and had resulted in the major failure of the engine. " In order to avoid further failures, as a gesture of goodwill we have sent a brand new half engine and have asked the dealer to have it fitted on your vehicle. In order to ensure that the work is done as per our norms our service engineer Mr. Jayaprakash will be on hand while these repairs are being carried out. No material has been brought to our notice by the complainant to show that half engine block was not replaced. Commissioner reported that due to oil starvation of engine oil, the engine gets overheated frequently and damaged its main bearing. In Ext. P14 it is stated that, "this was the reason for hearing of metallic sound". In his report Ext. P14 the Commissioner has stated that due to continuous overheat there is every possibility to get the cylinder head also overheated or warped (it is not practicable to find out by naked eye ). The Commissioner opined that the engine will not be perfect even if the block is replaced. In our view his report on the above aspects cannot be accepted and we have to come to such a conclusion on the basis of the evidence given by the Commissioner as P. W. 3. It is admitted by P. W. 3 that no request was made by him to either of the parties or to this Commission to make arrangement for dismantling the engine. He admitted in his evidence that only on examining the cylinder bore after dismantling the engine it is possible to find out the defects of the engine. It is also admitted by him without dismantling the engine it is not possible to find out the shape of the bore whether the bore is of oval shape or is of any other shape. It is admitted by him that as he has not dismantled the engine he cannot authoritatively report about all the defects in the engine and his assertion is that without dismantling the engine he can report about only a few defects. As the engine was not dismantled by the Commissioner we cannot give any credence to his assertion that due to continuous overheat there is very possibility to get the cylinder head also overheated or warped. Relying on evidence of P. W. 3 we cannot hold that the engine will not be perfect even if the block is replaced. Commissioner reported that replacement of the full engine assembly is the solution. Commissioner''s evidence furnished sufficient materials not to place any reliance on his report on that aspect. Though the Commissioner asserted in his evidence that he had checked the engine oil level before starting the vehicle such a fact is not reported by him in Ext. P14. He has not reported what was the volume of engine oil. It is also not reported by him while examining the engine there was any leakage of oil. We cannot accept his assertion that the reason for non-mentioning of that fact in the report is not on account of no oil leakage and if there was oil leakage he would have reported that fact. He has also not ascertained quantity and quality of engine oil used nor he ascertained the engine oil used was of a particular variety. It is admitted by him if a vehicle is driven when the oil level is low there will be overheating of the engine and damage will be caused to engine. His assertion is only that without dismantling the engine it is possible to detect only certain defects from the sound of engine. It is also to be pointed out that in cross-examination it is stated by him that he had not started the vehicle nor driven it and it was not in a condition to start. It is true that he corrected himself stating that what is reported by him that engine was started and allowed to run for reasonable time is true. We are not concerned with the question which statement of him is true. We may also point out here that we are not sure whether any objection has been filed to the Commissioner''s report by the opposite party Nos. 1 and 2 (we are saying so for the reason that we are sure that some of the papers are missing ). So we are not prepared to place any reliance on report of the Commissioner to the effect that complete replacement of the engine is the solution.

IT is true that in Ext. P12 1st opposite party admitted clearly that bearing had rotated and had resulted in major failure of the engine. We have to point out here that even if we accept Ext. P14 in toto at its face value no replacement can be ordered for the reason that the vehicle was taken in possession by the complainant on 16. 11. 1994 (that fact is evidenced by Ext. B1) and she sold the same to one Mr. S. Krishnakumar for a consideration of Rs. 1,27,000. The purchaser Krishnakumar had not chosen to get impleaded as an additional complainant and no relief is claimed by him against the opposite party. It is pertinent to point out here that the purchaser had not made any complaint either regarding the working of the engine or any other patent or latent defects after he purchased the vehicle. We have to point out here that complainant moved amendment application (I. A. 120/95) and order has been passed by this Commission. Order passed by this Commission is not in the bundle and parties are also not having the copy of the order passed. We are not sure whether this Commission allowed the amendment application or not. Even we proceed on the assumption that amendment allowed is not so far carried out. Applying Order VI Rule 18 we proceed on the basis that there was failure on the part of complainant to carry out amendment and so we proceed on the basis that the complaint is not amended. We have also seen in the file a petition for impleading 5th opposite party and no order has been passed on that application.

IT is to be pointed out here that the 4th opposite party informed the complainant by sending Ext. P13 dated 22. 5. 1995 that vehicle is now kept ready for delivery after all necessary repairs such as replacement of half engine, etc. Complainant was requested to arrange to take delivery of the vehicle immediately. There is no case for the complainant that immediately after receipt of Ext. P13 she went to take delivery of the vehicle and as she found the defects were not cured or rectified she refused to take delivery. It is not the case of the complainant that after receiving Ext. P13 immediately she got the vehicle inspected by any expert and it was found defective and defects were not rectified. She simply proceeded on the assumption that the 4th opposite party effected only temporary repairs. It is not the case of the complainant that whenever repairs were done by 4th opposite party she got examined the vehicle by any expert and found defects were not rectified. Commission was taken out only after filing complaint and it is not possible to accept the contention that she refused to take delivery after informing her by the 4th opposite party that defects were rectified on the ground that the engine was found totally unfit and defective. Fourth opposite party is only the dealer and the defects were developed to the vehicle during the warranty period. We cannot hold that defects developed during warranty period were not rectified by the 4th opposite party. The case of the complainant is that there was manufacturing defect for the vehicle and in case of manufacturing defect for the vehicle manufacturer alone can be made liable and 4th opposite party or 2nd opposite party cannot be made liable.

ONE of the prayers made by the complainant is to provide her a new car or to pay her the value. Even the Commissioner''s report is to the effect that replacement of the entire engine is the solution and, therefore, that prayer of the complainant cannot be allowed. Vehicle was sold by her and on that ground also that prayer cannot be allowed. It is true that the well settled legal position is that the normal rule is that the rights and obligations of the parties are to be determined on the date of petition and that subsequent events can be taken into consideration for moulding the reliefs provided such events had a material impact on those rights and obligations. From the materials available on record we cannot come to a conclusion that defects of the vehicle were not rectified by the 4th opposite party during the period of warranty and the complainant failed to prove that even after effecting repairs the vehicle continued to be defective. It is not necessary for us on the basis of conclusion reached by us to decide the question whether the vehicle was purchased for commercial purpose or not.

IN our view the complainant failed to prove that defects were not rectified and we have stated our reasons for not accepting the report of the Commissioner that replacement of the entire engine is required. We are not in a position to hold that the defects were not rectified and, therefore, in our view the complainant is not entitled to any relief. We may point out here that 3rd opposite party cannot be blamed for giving a loan to the complainant who approached it for loan and it is unnecessarily dragged to the litigation. The relief prayed for against the 3rd opposite party is to restrain it from initiating any steps for realisation of the money from the complainant connected with the vehicle loan. The third opposite party cannot be restrained from initiating any legal proceedings for realising the amount due to it under the loan taken by the complainant. Subsequently the complainant discharged the entire loan. As the third opposite party is an unnecessary party and unnecessarily dragged to a litigation by the complainant, 3rd opposite party is to be awarded a cost of Rs. 500. In the result complaint is dismissed and complainant is directed to pay a cost of Rs. 500 to the third opposite party. Complaint dismissed.