SOBHAG MAL MEENA JAIPUR Vs. HINDUSTAN MOTORS LTD

JUDGEMENT

(1.) THE Complainant has filed this complaint under s. 12 of the Consumer Protection Act, 1986 (No. 68 of 1986) " (the Act") on 1. 4. 89 praying that the opposite-parties may be directed to replace the Ambassador car purchased by him or opposite-parties may be directed to refund purchase price Rs. l,34,038. 39p. and also to pay compensation. In all a sum of Rs. 2,06,438. 39p. has been claimed by the complainant from the opposite-parties as detailed in para 5 of the complaint. It has been stated in the complaint that the complainant purchased Ambassador diesel car after paying sum of Rs. l,34,038. 39p. to opposite-party No. 2 M/s. Western Indian State Motors, Jaipur on 2-1-89. At that time the meter showed that it had run 1507 kms. only. This run was on account of the car having been brought from Calcutta to Jaipur. THE car was shown to be a new brand in the bill, photostat copy of which has been placed on record. On 4-1-89 the complainant made a complaint to opposite-party No. 2 at the time of the service that there is less oil pressure (KUM OIL PRESSURE) and the sound of the engine was also not correct. He was told that oil pressure will be alright after the car has run sometime. THE car was again sent for service in the company on 16. 1. 89 and the same complaint about the less oil pressure was made. THE same reply was given. THEreafter the complainant again took the car to the company on 3. 3. 89 when the mechanic (mistri) examined it and told him that rings and bush will have to be changed and thereafter there will be correct oil pressure. In this connection some other parts may also have to be replaced. At that time the complainant suggested that engine may be changed to which the opposite-party refused and told him that the car will be repaired after opening its engine and whatever new parts will be required, they will be replaced. THE car was taken to the company on 7-3-89. It remained there upto 13. 3. 89. When the engine was opened, it was found that bush and rings are of inferior quality. Despite this, new engine was not replaced. Opposite-party No. 2 after changing rings and bush and repairing it, delivered the car back to him. THE complainant has alleged that from all this it will appear that the engine was not of the standard quality and the car was second hand which caused mental agony. Upto that time the car had run 13260 kms. which according to the complainant was within the warranty period. THE complainant had averred that he was entitled to a new brand car and if the car is not replaced he is entitled to get back the amount paid by him. He has fastened joint and several liability on both the opposite-parties. He has claimed the reliefs which have already been detailed hereinabove.

(2.) SEPARATE versions were filed to the complaint by opposite-parties No. 1 & 2 Opposite-party No. 1 has denied the various defects mentioned by the complainant. It was asserted that opposite-party No. 2 sold the car in good condition and to that effect a note was appended by the complainant. Opposite-party No. 1 was also told that a satisfaction note was executed in favour of opposite-party No. 2. It was alleged by opposite-party No. 1 that warranty was given and so no complaint can be filed on that basis. There was no contract between the complainant and opposite-party No. 1. Besides denying the claim for compensation etc. , opposite-party No. 1 has claimed compensatory costs from the complainant. Opposite-party No. 2 has disputed various averments made by the complainant in the complaint. It has stated that the car was purchased by the complainant on the conditions contained in the warranty. It was denied that any defect was pointed out at the time of service on 4-1-89. The service of car on 16-1-89 was admitted and it was averred that whatever complaints were made by the complainant, they were removed and the certificate that the work has been done satisfactorily was obtained. In support of this photostat copy of the Repair Order No. 1041 was filed. It was admitted that the car was received in the garrage on 7. 3. 89 and after rectifying the defects, it was delivered on 13-3-89 after obtaining a note about its satisfactory working. It was denied that the car was received in the garrage on 3. 3. 89. It was submitted by opposite-party No. 2 that both the parties are bound by the terms contained in the warranty and according to that only defective parts can be replaced and the car cannot be replaced. On 1. 2. 89 the car was brought in the workshop and the complainant told that there was less oil pressure but it was not correct. There was leakage of oil from the oil filter and so that part was replaced and the certificate that it was working satisfactory was obtained The car was again brought on 23-2-89 in the workshop and the complaint was made that there was less oil pressure as oil pump and chamber packing were not in order. There was leakage of oil. Both the parts were replaced, though they were not included in the warranty. The plea of jurisdiction of the State Commission to entertain and try the complaint was also raised. In support of the version of the case opposite-parties No. 1 & 2 have filed some documents which will be referred and discussed herein under. Parties did not produce any oral evidence.

(3.) THE first question that crops up, in the circumstances of the case, is whether the complainant is justified in asking for the replacement of the car or for return of the purchase price paid by him in the purchase of the car. S. 12 of the Sale of Goods Act, 1930 deals with Condition and warranty. According to it a stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty. THE section lays down that a condition is a stipulation essential to the main purpose of the contract and the breach of which gives rise to right to treat the contract as repudiated. It also says that a warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. THE stipulation though called a warranty in the contract of sale may be a condition or a warranty. We have extracted one of the terms of the warranty and according to the facts stated hereinabove and the documents placed on record, we have no hesitation to say that when the complainant sent the car for necessary, repairs from time to time in accordance with the terms of the warranty, opposite-party No. 2 which sold it to him effected repairs and replaced the parts covered by the terms of the warranty. THE complainant as and when the car was sent for repairs after checking at the time of delivery appended a note that it was delivered back to him in satisfactory condition and a satisfaction note was appended to them. He accepted the car after repairs and has been using it. THE complainant admitted before us that at present there is no defect in it and it is giving good service. THErefore, now, there is no question that there was a breach of condition essential to the main purpose of the contract so as to repudiate the contract of sale or that the car should be replaced or price should be refunded to him. As a matter of fact on a careful consideration of the Repair Cards which are on record and the satisfaction notes, it is clear that there was no fundamental manufacturing defect in the car. It is clear that between the date of filing the complaint and up to this date, the car has made a run of about 17000 kms. As there was no breach of conditions of the contract of sale of Ambassador diesel car purchased by the complainant, he is not entitled to the replacement of the car or the refund of its price, particularly, even after 1-4-89 he has used it for a passenger taxi and had run about 17000 kms. as stated by the complainant. THE documents which have been placed on record amply show that opposite-party No. 2 has adhered to the terms mentioned in the warranty. At the risk of repetition, it may be stated that warranty is for a period of 12 months or 16000 km. whichever occurs earlier from the date on which new Hindustan Ambassador car was delivered. Now we take up the question of compensation. It appears that on account of defects in the car, it remained in the workshop of opposite-party No. 2 for about 10 days in all. THE complainant has claimed a sum of Rs. 60,000/- as compensation on account of mental agony and loss. THEre is absolutely no proof on record in this connection. Nevertheless the fact remains that the complainant could not use the car when it was sent for repairs in the workshop. Having bestowed our thoughtful consideration to this aspect of the case, we are of opinion that ends of justice would be met if Rs. 200/- per day is awarded as compensation to the complainant for 10 days. Opposite-party No. 2 shall pay a sum of Rs. 2,000/-as compensation to the complainant within two months from today.