VAREITIES vs AUTO DISTRIBUTORS

THIS complaint has been filed against the opposite parties with the allegations mentioned herein-after. The Premier Automobiles Limited, opposite party No. 2 is the manufacturer of the car known as Premier 118 NE car and the O.P. No. 3 and 4 are employees of O.P. No. 2. O.P. No.l M/s. Auto Distributors Limited, Exhibition Road, Patna is the authorised dealer of the O.P. No.2. On 10.6.85 one Shri Narain Khaitan booked by applying for pur 2 chase of Premier 118NE car with the O.P. No. 1 and deposited Rs. 11,000/- by Bank Draft No. 2651/85 dated 8-6-85 being an advance against booking against Receipt No. 034014 dated 16.6.85 granted by the O.P. No. 1. On receipt of the allotment letter and information from O.P. No. 1, Shri Khaitan deposited the balance amount of Rs. 1,22,798/- for which Receipt No. 1251 dated 13.7.87 was granted to him and the car was delivered by the O.P. No. 1 on 14.7.87 to Shri Khaitan. Subsequently Shri Khaitan transferred the said car to the complainant and an endorsement to this effect was made on the Certificate Of Registration itself, bearing registration No. BEA4944. But the said car was fitted with defective engine and so on 2.12.87 i.e. within five months of its delivery, when the complainant was returning by said car from his business trip it started giving some problem of break down. The complainant handed over the car to opposite party No. 1 on 5.12.87 and after the necessary repair in the car it was delivered back to the complainant on payment of Rs. 321.90 as cost of the Head Gasket and Labour charges which should not have been taken as per warranty cards. The complainant made complaint to the O.P. No. 2 and he also made complaint therein against the O.P. No. 1 as the O.P. No. 1 was not giving prompt service and proper attention to the complainant. The car was always giving trouble and the opposite party No. 1 did the necessary repairs after taking charges with regard thereto even during the warranty period. Due to defective engine fitted in the car, the car started consuming very heavy doze of Mobil oil and for this purpose the car was shown to the opposite party No. 1 and the complainant was told that the piston ring of the car was damaged and to rectify the same the engine was to be opened. Consequently the complainant delivered the car to O.P. No. 1 on 9.4.91 and the car is still lying with the O.P. No. who is demanding Rs. 30,000/- for delivering the same to the complainant. The car was not working properly due to defective engine from the very beginning and hence the O.P. was liable to change the car. The complainant sustained loss in his business to the extent of Rs. 300/- for hiring taxi and also sustained heavy loss in his business due to absence of car and sustained mental agony as well and hence the opposite parties are liable to pay Rs. 1,50,000/- only as compensation to the complainant and to replace the engine free of cost.

THE O.P. No. 1 has filed separate written statement O.P.N0. 2,3 & 4 have filed a joint written statement. THEir objection inter-alia is that the complaint petition is not maintainable as the car has been purchased by Shri Narayan Khaitan for re-sale and commercial purposes. Further objection on behalf of the opposite parties that the complainant was not entitled to get any free service in accordance with the terms of warranty. THE complainant contravened Clause No. 7(g) of the warranty which lays down that the warranty shall cease to operate and become void if an Airconditioner is fitted in the car without approval of Premier Automobiles Ltd. and that if the customer desires fitment of an Airconditioner before the expiry of the warranty period, he should first approach Premier Automobiles Ltd., through the Premier 118NE car authorised dealer from whom the car is purchased. But in the present case the complainant got an Airconditioner fitted in the car else where, a place/workshop not authorised by O.P. No. 2 Moreover, according to Clause I of the Warranty of Premier 118NE, the Premier Automobiles Ltd., warrants to repair or replace free of costs, any part or parts (except electric bulbs, tyres and tubes) of new Premier 118NE car which to the satisfaction of PAL (Premier Automobiles Ltd.) are found to be defective either in material or manufacture, within a period of 365 days from the delivery of the car to the original purchaser or before the car has been driven 20,000 K.Ms (which ever shall occur first), but the car was brought to O.P. No. 1 for repairs on 9.4.91 when the car had been driven more than 34,000 K.M. and, therefore, both in terms of the warranty period and the mileage, the repair job will have to be done on charge basis. THE car supplied to the purchaser did not contain defective engine. THE complainant is not entitled to any relief or compensation claimed by him. On the pleadings of the parties the first point to be decided is if the complaint filed by the complainant is maintainable under the Consumer Protection Act, 1986 (hereinafter referred to as the Act). Section 2(1)(d) of the Act is relevant for this purpose which reads as follows:- "2(1)(d) ''Consumer'' means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for, any commercial purposes; or (ii) hires any services for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and includes any beneficiary of such services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person".

Now, admittedly in the present case the car was purchased by one Shri Narayan Khaitan and it was transferred to the complainant regarding which an endorsement was made in the Certificate of Registration also filed as Annexure-3 to the complaint petition. Of course the complainant has tried to make out a case that he had approached the O.P. No. 1 through Shri Narayan Khaitan for purchase of the car and thus according to the complainant the car was initially booked on behalf of the complainant. But we are not inclined to accept this. If the complainant wanted to purchase the car, there was no bar to prevent him from booking the car in his name. On the admitted facts of the case the car was booked in the name of Shri Khaitan and it was Shri Khaitan who paid the price of the car and Shri Khaitan took delivery of the car from the O.P.I. These facts are also well supported by the Annexures filed along with the complaint petition. Hence transfer of the car by Shri Khaitan to the complainant was clearly a case of resale. Moreover from the complaint petition and also from the rejoinder filed by the complainant to the written statement filed by the opposite parties it is evident that the car was for the use of the complainant for his business. Hence the car was obtained for commercial purposes. Hence the complainant cannot be a consumer within the meaning of Section 2(1) (d) of the Act as this section clearly excludes from the category of "consumer" and any person who obtains goods for resale or for any commercial purpose. On this ground alone the complaint filed by the complainant is not maintainable under the Act.

MOREOVER, the O.Ps have specifically asserted in their written statements that the car was brought to O.P. 1 on 9.4.91 after it had already been driven for more than 34,000 K.Ms, and, therefore, in terms of warranty both regarding the period and mileage the complainant was not entitled to have free service from O.P. 1 and the repair work could be available to the complainant in the said car on charge basis. The complainant filed rejoinder to the written statement filed on behalf of the O.Ps. But neither in the rejoinder nor in the complaint petition there in any averment in this regard on behalf of the complainant to controvert this assertion regarding these terms of warranty of the period and mileage made on behalf of the O.Ps. in their written statement. Hence the Commission does not find any reason to disbelieve this assertion on behalf of the opposite party. Hence the complainant cannot claim the replacement of the engine of the car free of cost. For these reasons the complainant is not entitled to any relief. The complaint petition is accordingly dismissed. There is no order as to costs. Complaint dismissed.