VINOO BHAGAT Vs. GENERAL MOTORS INDIA LTD

JUDGEMENT

(1.) VINOO Bhagat, the complainant is the appellant before us. When he purchased a new Opel Astra car from the respondents (manufacturer and the dealer respectively) on 25.3. 1997 for Rs.7,34,244.00, he was under the illusion that he was buying a German car and not a car which is manufactured as German car and that it would be defect free. He made a mistake. According to him a false representation was made that the car he was purchasing was a German car manufactured in Germany. He was not told that the car had been manufactured in Australia by Holden Company, a subsidiary of General Motors, an American multi-national company . Bhagat also found that defects in the new car substantially impaired the use of the car by him right from the day one till 25.5.97. The new car visited the workshop of the respondents number of times but defects persisted and since 25.5.1997 car is lying with the respondents. He, therefore, filed this complaint before the State Commission for refund of the price with interest, damages and cost. After the pleadings were complete evidence was led by means of affidavits. No expert evidence was led by either of the parties. Respondents in their different written versions denied the allegations of any misrepresentation or defect in the vehicle. State Commission dismissed the complaint. Hence, this appeal by the complainant.

(2.) DURING these proceedings before this Commission, car was sent to the Automotive Research Association of India (ARAI) at the cost of the respondents for its opinion on the functioning of the car. ARAI is a research institute with the Ministry of Industry, Government of India. A report was received on 20th December, 1999, operative portion of which reads as under :

(3.) THE question that arises, however, is as to what are the rights of a consumer in the circumstances of the case before us. He can seek return of the defective car on account of malfunctioning and also on the ground that he was made to believe that it was a particular brand of car when it was not so. If the car is defective and its use is substantially impaired, a consumer can seek replacement as well and if there is any misrepresentation then he can get refund of the purchase price which he paid. Undoubtedly it is for the consumer who complains, to prove the defects in the car but that would not mean that he is required to pinpoint the precise nature of the defects, its cause or source. In the present case, however, Bhagat did point out the defects and filed his own affidavit. The warranty for the car is for the whole of the product and is breached when the car does not perform properly even if no individual part can be identified as defective. A consumer forum has to examine the case from the angle of a reasonable man of ordinary prudence. We may say when the consumer who buys a brand new car alleges that that is not properly functioning, his statement is to be taken as adequate to meet the requirement of burden of proof when it is supported by his affidavit. Of course, the expert testimony will put his case still on a higher footing. In the present case we need not consider the question of replacement of the car as according to the complainant he has no confidence left in the make of the car sold to him. Otherwise it becomes necessary for us to examine as to how many times the car was sent to the workshop and the number of days it was kept there for repairs and whether the respondents were given sufficient advance notice of the defects in the car. When reasonable opportunity had been given to the respondents to repair the car and yet there is a failure it would certainly be a case for refund or replacement. It is not duty of the consumer to take new car again and again to the workshop and deprive him of the use of the car for number of days. He never bargained for such a situation.