RATNAPRABHA MOTORS Vs. JAGDISH RANCHHODAS VAISHNAV

JUDGEMENT

(1.) 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.

(2.) The O. P. No.1 has filed separate written statement O. P. N0.2,3 and 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.

(3.) 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 ). Sec.2 (1) (d) of the Act is relevant for this purpose which reads as follows:-