SURESHCHANDRA Vs. MARUTI UDYOG LTD

JUDGEMENT

(1.) The complainant is a medical practitioner practicing in the city of Jamnagar. The complainant had purchased a new Maruti 800 Standard car from the opponent No.2, the dealer of opponent No.1. The opponent No.2 is alleged to be only the agent and dealer of Maruti car which is manufactured by the opponent No.1 having its head office at New Delhi. The engine number, chassis number and other particulars have been given in the complaint. The complainant is alleged to have been paid Rs.133,904.70 towards the price of the car, Rs.3749/- by way of octroi and Rs.3,493/- as premium for the insurance with the opponent No.2. He had also paid RTO tax of Rs.1,900/- and about Rs.5,000/- for the extra accessories like tape recorder, seat cover, front bumper and other minor accessories. According to the complainant he had spent about Rs.148,046.70 for the purchase of the car. According to the complainant, the car was hypothecated with State Bank of India, Jamnagar and the loan was taken under which he was required to pay by installments. The car was delivered to him on 17.7.91. The car was sent for first free service on 7.8.91. The car had done 563 Kms. only when it was serviced in the authorised service station of the opponent No.1. In para 5 of the complaint the complainant has alleged that on 20.8.91 the complainant had parked the car at about 5 p. m. and at about 11.30 p. m. before retiring, he checked his vehicles including the Maruti car, scooter moped etc. He had not found any thing unusual and, therefore, he went to sleep in his room. However, the car caught fire on that night and was burnt. According to the complainant the car was parked in his garage which is a part of the bungalow and, therefore, there is no chance of any mischief by anybody. The Panchnama is alsoon the record wherein it is written that in the building there was an open garage with roof over it which means that the garage had no doors but only roof and was situated in the building itself near the main door. The complainant had filed the FIR before the police authorities and the Panchnama was prepared by the police which had been produced at Annexure-B. The car was insured with the opponent No.3 and, therefore, the complainant informed the Insurance Company and a spot survey was made and thereafter the final report was submitted. The car was assessed in total loss. According to the complainant the car caught fire because of the short circuit in the wiring of the Maruti car of the complainant which was on account of the negligence on the part of the opponent No.1. The complainant therefore wrote a letter to the opponent No.1. on 23.8.91 which was replied by the manufacturer promising that they will investigate the matter through concerned officer but the complainant has not heard anything as to what investigation was made by the manufacturer. Nobody had come even to see the car which was in burnt condition. The burnt car has been taken away by the Insurance Company-opponent No.3 as salvage and they had paid the full amount of Rs.133,550/-. The complainant had also checked the wiring of his bungalow from the authorities of Gujarat Electricity Board and the Board had submitted a report mentioning that there was no short circuit in the electrical installation of the complainant's bungalow. The fire brigade of Jamnagar Municipal Corporation has also made a report stating that the car burnt accidentally which means that it had no outward (external) connection. Since the opponents No.1 and 2 did not care to inspect the car or pay the damages, the complainant has filed this complaint and claimed Rs.148,046.70 as loss sustained by him because of the fire to his car. The cause of fire as alleged by the complainant is manufacturing defect. In support of his contention, the complainant has filed his own affidavit and the affidavit of one Shri Jagdish Keshubhai Maru, an automobile engineer, holding Diploma in Automobile Engineering of Polytechnic College of Bhavnagar who has passed the examination with distinction. He was working as a motor mechanic and having a garage at Rajkot. Shri Maru has examined the car and has come to the conclusion that the wiring of the car was such that if there is any defect in the Soleoid switch 12 volt current will continuously flow (reverse flow) even though the ignition key is off with the result the ignition coil will become hot and hot after 4/5 hours and it may set fire in the car. According to the arguments of the learned Advocate of the complainant, the fact that the car was parked in the garage within the bungalow premises though there was no doors to the garage, there was no other possibility of fire except some internal cause in the car. The key was with the complainant. Therefore either there might be some defect in the wiring system or inherent manufacturing defect in any of the electrical apparatus which might have discharged the electrical spark resulting into short circuit and fire. In any case, according to the complainant it was the duty of the opponents No.1 and 2 to come and inspect the car and give the report either to the company and /or the complainant.

(2.) In pursuance to our summons the opponent No.1 has filed a written statement in which the opponent has repudiated the claim and has also raised the preliminary objection that the complainant had filed a complaint No.393/92 (the correct number is 373/92) which has been dismissed by this Commission on 7.7.92 for default since the complainants did not appear before the Commission. The second complaint having been filed by the complainant will be barred by the principles of res judicata as provided under Sec.11 of the Civil Procedure Code. On merits, the opponent No.1 has stated that the opponent No.2 is the authorised dealer of opponent No.1 and the relationship between the parties is governed by the dealership agreement between them. That agreement is not produced by the opponent No.1. The opponent No.1 has further denied that the car caught fire because of the manufacturing defect in the wiring particularly when the fire took place after one month. Previously the complainant had not made any report of any defect in the wiring, It shows that there was no manufacturing defect in the vehicle. The opponent has further stated that the garage having no doors, this might be the handiwork of mischief mongers or anti social elements. The fire had taken place after 10 hours after the vehicle was parked in the garage which was at 3 a. m. The vehicle was inspected by the approved Surveyor of the Insurance Company but had not pointed out any cause which led to fire in the vehicle.

(3.) These are the material averments and case of both the parties. The questions therefore arise for our consideration are: (1) whether the second complaint suffers from principles of res judicata; (2) whether fire was caused on account of any manufacturing defect; (3) what can be the probable cause of fire in the car and; (4) is the complainant entitled to any damages If yes, what should be the damages.