TELCO LTD. Vs. BRIJMOHINI CHAUHAN

JUDGEMENT

(1.) This revision petition filed under sec. 21(b) of the Consumer Protection Act, 1986 (in short, the 'Act') assails the order of the Rajasthan State Consumer Dispute Redressal Commission, Jaipur (in short, 'State Commission') in First Appeals No. 988 of 2005 and 975 of 2005 dtd. 1/10/2010 dismissing the appeal against the order of the District Consumer Disputes Redressal Forum, Jaipur Second, Jaipur (in short, 'District Forum') in Consumer Complaint No. 310 of 2004 dtd. 25/5/2005.

(2.) The brief facts of the case as per the revision petitioner are that the respondent had purchased a TATA Indigo LSE II car manufactured by the petitioner on 26/2/2003 for Rs.5,28,540.00. After running for 39,630 kms, the car stopped on 30/3/2004 as the cylinder head of the engine seized due to overheating. At the workshop the assessment was that the respondent had used water instead of coolant and that the thermostat valve had been removed which was the cause of the engine's seizure. The respondent was informed that since the vehicle's breakdown was due to maintenance issues and not manufacturing defects, it was beyond the terms of warranty (clause 5) and the cost of repairs would have to be borne by her. The vehicle was abandoned at the workshop by the respondent on 31/3/2004 without authorization of repairs and has remained there since then for which she is liable to pay Rs.250.00 per day. As the defect was due to improper maintenance and not any manufacturing defect, the petitioner has contended that the order of the District Forum in CC no. 310 of 2004 directing the petitioner to repair the car free of cost within 2 months and pay Rs.10,000.00 as compensation for mental agony and Rs.2,000.00 as litigation costs to the respondent was not justified. The impugned order of the State Commission in appeal filed by the respondent sets aside the order of the District Forum and directs the petitioner to replace the car with compensation, litigation cost and damages for having deprived the respondent from using the vehicle.

(3.) The petitioner contends that the impugned order is erroneous and illegal as it provides a relief far beyond that prayed for by the respondent. The order has not distinguished that there were no warranty issues as the vehicle was incorrectly maintained which led to the defect arising and resultantly the vehicle stopped on the road. Petitioner cites various job cards pertaining to the car dtd. 30/3/2004 and 31/3/2004 and a Customer Complaint Investigation Report when it went for servicing/repairs in support. It is contended that the State Commission wrongly relied upon the affidavit of one Sandeep Khanna, Surveyor and Loss Assessor who examined the car at the workshop of petitioner no.2 on 22/10/2004 without authorization, regarding which a police complaint was also filed, which document has been disregarded by the State Commission. The petitioner no. 1 contends that there is no privity of contract between the respondent and him since he sells cars to dealers. He has relied upon the judgment of this Commission in Maruti Udyog Limited Vs Nagendra Prasad Sinha and Anr., decided on 4/5/2009 - 2009 (II) CPJ 295 NC which held that as the relationship between the manufacturer and the dealer is on the basis of principal to principal, the manufacturer would not be liable for the acts of the dealer. He also relied upon the judgment of the Hon'ble Apex Court in the case of Indian Oil Corporation vs Consumer Protection Council, Kerala and Anr., II (1994) CPJ 21 (SC) which held that once delivery of the vehicle is given to the dealer after realizing the price from the dealer, the relationship between the manufacturer and the dealer was not of principal and agent, but of vendor and purchaser. In Maruti Udyog Limited (Supra) the State Commission had held that the company was liable to either deliver the vehicle or refund the deposited amount or to pay compensation to the complainant. He contends that the fora below failed to consider the terms of the warranty given by the petitioner in respect of the vehicle, which are final in terms of the decision of the Hon'ble Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier - (1996) 4 SCC 704 dtd. 9/5/1996 wherein it was held that an agreement between parties was binding and could not be described as being onesided. Clause 5 of the Warranty specifically provides that it will expire in the eventuality of misuse or negligence by the customer. The seizure of the engine was due to use of water instead of coolant and the thermostat valve being missing which is attributable to negligence and misuse by the respondent. It is also contended that the grievance can at best be limited to the engine and not the vehicle as a whole. The petitioner contends that the fora below failed to follow the prescribed procedure under Sec. 13(1)(b) of the Act and arrived at a finding without referring the vehicle for testing and a report from the 'appropriate laboratory' to ascertain whether it suffered from a manufacturing defect. It is also averred that the vehicle had run nearly 40,000 kms which was a relevant factor to be considered as per the decision of the Hon'ble Supreme Court in Telco Motors Vs. Gajanan Mandrekar (1995) 7 SCC 507 that since the vehicle was extensively used, there is need to deduct proportionately from the compensation awarded. He has also relied upon TATA Motors vs Ashok Saraf - FA no. 524 of 2005 where this Commission has taken a view that abandonment of vehicle by vehicle owners is not a justified Act. Petitioner has relied upon Maruti Udyog Ltd., vs Susheel Kumar Gabotra and Anr., in CA No. 3735 of 2000 - (20060 4 SCC 644) which held that the inference of any manufacturing defect does not justify replacement of the car itself.