O R D E R

Heard the Ld. Counsel for the parties.

This revision petition has been filed against the order allowing appeal of Maruti Udyog/respondent on the ground that there was no contract in between the complainant/petitioner Ajay Garg and Maruti Udyog.

Brief facts giving an occasion to file this revision petition are as under:

Undisputedly, the car bearing chasis no.1004322, engine no.1319932 and registration no.HR-01 D/5639 was purchased by Sh.Udham Singh s/o Sh. Gurdial Singh on 20^th May, 1996 from Heera

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Automobiles Limited.  It was manufactured by Maruti Udyog Limited.      Sh. Udham Singh, the original purchaser transferred the vehicle in the name of Ajay Garg on 15^th July, 1996.  The complaint of Ajay Garg was that it was showing excessive consumption of Mobil oil and was suffering from other defects.  These defects were pointed out.  It was verbally assured by Modern Automobiles, GT Road, Karnal that the matter may be resolved on the next service on 2^nd September, 1996.  The excessive consumption continued even on subsequent two services on 15^th Dec

ember, 1996 and 25^th December, 1996.  The mechanics of OP no. 5 did not heed to his request for removal of the defects.  Consequently, a specialist Mr. Paul of Maruti Udyog though promised to rectify the defects, demanded illegal amounts.  Defects were not removed and the engine was not changed as was promised.  The complainant had to stop its user altogether after it showed mileage of 18,900 kms, he had to hire a car @ Rs.800/- per day and ultimately he filed the complaint for replacement of the car with a direction to the complainant to pay Rs.50,000/- for car hired and Rs.50,000/- for mental torture.

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The matter was contested by Maruti Udyog, Heera Automobiles and Area Manager of the Maruti Udyog.  Though they took preliminary objections but they were not pressed.  They claimed that the car was totally defect free during the course of first three services.  At the time of 4^th service on 25^th December, 1996 the complainant complained about the front shockers of the car and by then the car had run for 14,481 kms without any problem of high oil consumption.  Only on 17^th January, 1997 a complaint was made regarding excessive oil consumption for the first time.  It was not on account of any manufacturing defect or any poor service of the authorized dealer but because of use of the inferior quality of engine oil at the time of third service and it was not a manufacturing defect. 

The District Forum after considering the material brought before it on the record, directed replacement of the car engine by new one within 60 days and if the replacement of the engine was not possible, OP1 should refund the amount charged from the complainant minus Rs.30,000/- and Maruti Udyog should pay a compensation @ 2500/- per month along with Rs.1,500/- as cost of litigation.  The complaint was dismissed against Heera Automobiles as well as against Sh. R.

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K. Brar, Works Manager, Modern Automobiles, Karnal.  Though, it is not specifically mentioned but it appears that since no relief has been granted against opposite no. 5 and directions had been issued to Maruti Udyog alone, it has to be deemed dismissed against Modern Automobiles also.

Maruti Udyog feeling aggrieved by the order of the District Forum filed first appeal no. 173/98 before the State Commission.  The State Commission decided the matter by holding that there was no relationship between the appellant Maruti Udyog and the respondent/complainant Ajay Garg for the vehicle was purchased by one Udham Singh which was sold to Ajay Garg on 15^th July 1996.  At the time of purchase, the complainant should have purchased the car with open eyes after getting the same checked from some mechanic.  The complainant had got 3 free inspection services and no defect was pointed out in the job card; there was no defect of high consumption of oil upto the mileage of 14,481 kms; that neither there was any privity of contract nor there was any appropriate proof of the defect.   The appeal was allowed and the complainant was dismissed.

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Feeing aggrieved by the order passed by the State Commission, the present revision petition has been filed.  In view of the above discussion, two points which needed consideration of this Commission are as under:

1.      “Whether there was any privity of contract between the complainant and the opposite party no. 1?

2.      Whether there was any manufacturing defect as alleged by the complainant?”

          As regards the first point, I have heard Ld. Counsel for the parties and have gone through the material on record.  It is evident that the vehicle was not directly purchased from Maruti Udyog.  It was purchased from Sh. Udham Singh.  One could argue that there was no privity of contract as is argued by the Ld. counsel for the respondent but at the same time when the vehicle was purchased just 2 months before and the vehicle was transferred during the period of warranty, then the plea that there was no privity of contract is not of any help to Maruti Udyog.  The observations of the State Commission virtually applying the rules of Contract Act can also not be sustained for excessive use of oil is not a patent defect.  It is latent

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defect and it could be known only after use.  Consequently, insofaras this part of observations made by the State Commission is concerned, it cannot be sustained.

          As regards the point of manufacturing defect in order to prove that there was excessive use of engine oil, we have granted ample opportunities to the petitioner to produce the relevant documents.  On                      27^th September, 2007, last opportunity was granted to the petitioner to produce the documents along with the job card.  It was further made clear that we might not be inclined to adjourn the matter on the next date.  But despite this, we granted another opportunity on                 26^th November, 2007.  The matter was adjourned again on                  30^th January, 2008 and till today, the documents have not been filed.  In these circumstances, in view of total lack of credible evidence it is not possible to sustain the view taken by the State Commission that there was manufacturing defect. As such, there is no merit in this matter.

          One of the preliminary objections taken by the petitioner is that the impugned order was passed on 3^rd April, 2001 and the revision petition was filed on 20^th July, 2002.  Certified copy appears to have

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been issued after 6^th July, 2001.  The Memo of Parties appears to be dated 26^th September, 2001 but it appears to have been filed on                  20^th December, 2002 as per endorsement of receipt on the file.  An application for condonation of delay was filed.  It was alleged that the petitioner was living at Karnal.  An affidavit was prepared and signed in January, 2002 and the complete paper book of the revision petition was entrusted to junior Sh. K. K. Mahalik, Adv. for filing before this Commission.  He kept the paper book in the files in the office but it was misplaced.  Mr. K. K. Mahalik thereafter left the office of counsel in February, 2002.  On 14^th December, 2002 when the files of the counsel for the petitioner were being arranged, the file tagged along with the old files and it was discovered and without any delay, the revision petition was filed.  Though it is not a very plausible ground for if the office of the senior counsel have forgotten to file the same or the file was misplaced, the complainant was also supposed to enquire and to ensure that it was filed at time.  However, in the unusual circumstances as mentioned hereinabove, the delay in filing the revision petition is condoned.

In view of circumstances and reasons mentioned hereinabove, the revision petition is dismissed.

          The Commission is avoiding to impose cost.  However, parties are left to bear their own cost.